(Guest)

Surrogate mother for a man in divorce pending case

a friend of mine has a divorce case pending with his wife. its been 2 yrs now. she has lleged false 498a and impotency on him. he wants to have a baby, can he seek a surrogate mother by IVF or artificial insemination for that. will it attract adultery or bigamy?? all experts opinion is welcome :)

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12 Replies

(Guest)

interestin q . may attract adultery as per existing laws.

Raj Kumar Makkad (Adv P & H High Court Chandigarh) 06 February 2010

hahahahahahahhahahaha.

Indian Law will have to be changed for fulfilling his desire.

N.K.Assumi (Advocate) 07 February 2010

Position of India in Surrogate Issues.

Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK.

While clinics quote costs of a single successful cycle without complications of $14,000 to $25,000, less than 50% of tries are successful. An unsuccessful cycle will be roughly 1/3 to 1/2 the cost of a successful cycle, incurring IVF, surrogate recruitment and travel costs, without incurring the full surrogate compensation or delivery costs. A successful cycle may require additional costs, especially if the baby is born premature (intensive care costs) or if additional medical testing is required for either the baby or surrogate mother during the pregnancy.

Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.

There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.

Suchitra. S (Advocate) 07 February 2010

I think sarrogacy does not attract adultry. Artificial insemnation is no way concerned with act of adultry. As described by Assumi Sir, the sarrogacy Bill is yet to come into force in India. As in this particular case, wife is not ready to live with the husbnd adn has filed divorce petition, even artificial insemnation for wife is also ruled out.

Suchitra. S (Advocate) 07 February 2010

Sorry, I left out answering on the point of bigamy in the query. Since contract of sarrogacy needs the consent of both husband and wife, it neither attract adultry or bigamy.

Arvind Singh Chauhan (advocate) 07 February 2010

I agree with suchitra.

(Guest)

what if divorce is pending in court and only one ( husband ) gets a baby thru surrogate mother?

Suchitra. S (Advocate) 07 February 2010

There is no enactment in India regarding sarrogacy. So, it is premature to talk about getting child through sarrogacy , Avnish Sir.

Suchitra. S (Advocate) 07 February 2010

In sarrogacy, the consent of both husband and wife is compulsory. Sarrogacy is all about only hiring a uterus and it doesnt not have anything to do with the woman who delivers the baby.