Rights Of A Surrogate Mother In India

Law
28-Nov-2023
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Surrogacy involves a woman, known as a gestational carrier, who agrees to carry a child for individuals or couples unable to reproduce. The Surrogacy Bill 2019 in India aims to regulate surrogacy, prohibiting unethical practices and commercial exploitation of women. This blog explores the rights of surrogate mothers in India within the framework of this legislation.

Right to Informed Consent

The right to make an informed decision and/or consent is the most important right of a surrogate mother. They should be well aware of the process involved, potential health risks, and the people seeking surrogacy.

Right to Medical Care

As per the surrogacy contract, the surrogate mother has the right to medical care, and get all her expenses and cost involved to be covered from the time she conceive the baby till the delivery. There are certain nonrelated medical expenses as well which are essential for the development of the baby and should be covered by the people involved in a timely manner.

Right to Legal Representation

Legal representation is an essential right for a surrogate mother as it ensures the protection of rights needs and expectations. It ensures that all the terms of the surrogacy contract are duly complied with. It also gives them the power to negotiate the terms of the surrogacy agreement well.

Right to Choose

Right to choose basically gives the surrogate mother the power to make a voluntary and informed decision whether she desires to participate in the process or not. No form of coercion or under-influence should be there on the mother while making the decision, it should be made without any kind of external pressure involved. The object is to protect the choice and decision-making power of the surrogate mother.

Right to Privacy

One of the main rights of the surrogate mother is the right to privacy. The privacy of a surrogate mother should be protected at all times during the whole process. When a woman signs up with the agency that brings surrogate mothers and the couple together, her privacy obligations commences and her identity is disclosed to the concerned parties upon meeting. The people looking for the mother can check the records of the surrogate mother, however, it should not be disclosed to any third party at any given point in time. Privacy obligations should be strictly adhered to by all the parties involved.

Right to Compensation and Expenses

Surrogate mothers have a right to compensation for their services involved including reimbursement of all the reasonable expenses incurred by them during the whole pregnancy. The act ensures that every surrogate mother's efforts are duly compensated and at no time she should suffer any kind of fraud or cheating by the involved couple.

Right to Terminate Pregnancy

It should be the right of every surrogate mother to terminate the pregnancy as per the Medical Termination of Pregnancy Act, 1971 in the event any complication or health risk is involved to her during the process. The involved couple cannot force her to retain the pregnancy and she has all the rights to terminate it as per the law. However, it should be done as per the guidance and expertise of the health professionals.

Right to Maternity Leave

The Maternity Benefit Act, of 1961 envisages the provisions and rights of an expecting mother and a woman employee who becomes a mother through surrogacy has all the right to avail the same. They are entitled to 180 days' leave as provided by the law and all the other benefits under it. As per the act, the commissioning mother comes under its ambit and recently, the Andhra Pradesh High Court has held that all women government employees are entitled to maternity leaves.

Right to Parental Surrender

While agreeing to the surrogacy agreement, the surrogate mother agrees to surrender all the parental rights of the child and shall hold over the same to the involved couple. Legally, the surrogate mother has no parental rights over a surrogate child and cannot claim so at any given point in the future.

References: 

https://www.eoibucharest.gov.in/docs/1583763423Surrogacy_2019.pdf

https://www.iasparliament.com/current-affairs/maternity-benefits-amendment-act-2017

https://prsindia.org/files/bills_acts/bills_parliament/2019/The%20Surrogacy%20(Regulation)%20Bill%202019-Issues%20for%20Consideration%20(2).pdf