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Surrogacy And Adoption Laws
The journey to parenthood can be beautiful and complex. For some couples, infertility or medical challenges may make biological conception difficult. Fortunately, advancements in assisted reproductive technology (“ART”) have opened doors to alternative paths to family building. In India, surrogacy and adoption are two legal options for couples seeking to expand their families.
SURROGACY IN INDIA
Surrogacy involves a woman carrying and giving birth to a child for another individual or couple. There are two main types of surrogacy: traditional surrogacy and gestational surrogacy. One of the key legal considerations in surrogacy is the establishment of parental rights. Laws regarding surrogacy vary widely across different jurisdictions, with some countries and states having specific regulations governing the process. It’s crucial for intended parents and surrogates to enter into a legally binding agreement that outlines rights, responsibilities, and expectations.
The Surrogacy (Regulation) Act, 2021 (“the Act”), governs surrogacy in India. The act lays down certain rules which are as follows-
- Altruistic surrogacy:According to the act, commercial surrogacy (paying the surrogate mother) is strictly prohibited. Surrogacy must be an entirely altruistic act.
- Eligibility Criteria:
- Only married Indian couples who have been infertile and childless for at least five years can opt for surrogacy.
- The woman acting as a surrogate must be a close relative of the intending couple, aged between 35 and 45 years. She can only be a surrogate mother once in her lifetime.
- Process and Regulations:Surrogacy must be undertaken at a registered medical facility with qualified professionals. The intending couple and surrogate mother must undergo counseling and complete necessary medical evaluations.
- Intention of Parenthood: The law emphasizes that the intended parents be the legal parents of the child born through surrogacy and no separate adoption process is required.
ADOPTION IN INDIA
Adoption is another legal pathway to parenthood in India. Adoption is a legal process through which individuals or couples become the legal parents of a child who is not biologically theirs. The process involves extensive legal procedures, including background checks, home studies, and court appearances. Different types of adoption, such as domestic adoption, international adoption, and foster care adoption, have their own set of legal requirements and challenges.
The Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2000, govern adoption procedures. The Acts lay down:
- Who can adopt:Indian couples, single men or women (including widows, divorced individuals), and foreign couples can all adopt under certain conditions.
- Central Adoption Resource Authority (“CARA”):“CARA” is the nodal agency that facilitates adoption in India. Prospective adoptive parents must register with “CARA” and undergo a home study.
- Types of Adoption:In-country adoptions (domestic) and inter-country adoptions (from other countries), both are possible.
Surrogacy and adoption are valuable options for individuals and couples seeking to expand their families. However, the legal complexities associated with these processes require thorough understanding and careful planning. Consulting with experienced legal professionals specializing in family law and reproductive rights is crucial to ensure a successful and legally sound surrogacy or adoption journey. By addressing the legal aspects early on, individuals and families can navigate the complexities with confidence and clarity.
HOW WE CAN HELP
The legal aspects of surrogacy and adoption can be complex.
- Our experts carefully evaluate client’s eligibility under the Surrogacy (Regulation) Act, ensuring that they meet all legal requirements.
- Our team will draft a clear and comprehensive surrogacy agreement that outlines the rights and responsibilities of all parties involved, protecting the interests of our client throughout the process.
- Our legal experts guide our clients through the legal steps after a successful birth, including obtaining parental orders and birth certificate registration.
For more information or queries, please email us at
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