A surrogacy contract or agreement is mandatory as per the ICMR guidelines. The agreement is the only legal paper to support your claim on the baby and for getting his/her passport and visa etc. A copy of this contract will be required during embassy and visa related documentation process. The agreement recognizes surrogate baby to be your legitimate offspring without there being a need for adoption.
It is very important that your surrogacy contract does not miss on anything that may later create legal issues with the parties concerned and should abide by the law of land. If you are not an Indian national, the contract should be compatible with the surrogacy laws of your home nation too.
Who sign surrogacy agreement?
A surrogacy agreement is between the two parties – you as intended parents and the surrogate mother, where both should understand the intention of each other at the time of signing this contract. A surrogacy agreement should be signed by you (both parents), surrogate mother, surrogate’s husband, witness from the ART clinic, and your doctor.
Drafting the surrogacy agreement
Generally your ART clinic or surrogacy agency provides the standard surrogacy agreement copy prepared in consultation of the lawyer. But you also have the option to hire your own lawyer to review and add/remove any elements in the contract.
You should be careful while drafting the sections of agreement so that it is not held void at the court of law. Both parties should clearly express the situation/purpose, need for surrogacy, free will of surrogate in terms agreeing to gestation, responsibilities, liabilities, handing over the baby to you etc.
A surrogacy agreement should be reviewed by a lawyer registered with the Bar Council of India who possesses knowledge of surrogacy laws and preferably have past record of dealing with surrogacy contracts. Your agreement should be able to deal with obscurities or twists that might occur during this sensitive process. Once the agreement is drafted with consent of all the parties it is signed and notarized. Remember, once the agreement is made and signed, it cannot be changed later.
As per the ICMR guidelines there are certain clauses that are mandatory to put in the contract. Some are listed below:
- Provide financial support for the surrogate baby in the event of your (one or both parents) death before delivery of your baby, or divorce between you as husband and wife and subsequent unwillingness to take the baby.
- Include life insurance cover for surrogate mother.
- Declaration by nominees- The agreement also includes two nominees on your behalf who would fulfill all your responsibilities mentioned in the contract, in case you fail to meet them.