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Retrospective Surrogacy Contract for Parents Intending MTP: A Proposition for consideration of legal fraternity

Proposed retrospective Surrogacy Contract
Traditional Surrogacy Contract Modified

THIS AGREEMENT is made as of _________________, 20____, by and between _______________, the acknowledged (intended) father (hereinafter referred to as the "Intended Father"); ________________, the acknowledged (intended) mother (hereinafter referred to as the "Intended Mother"); ____________ (hereinafter referred to as "Surrogate") and ____________ (hereinafter referred to as "Surrogate's Husband").

The Intended Father and Intended Mother are hereinafter collectively referred to as the "Intended Parents". The Surrogate and Surrogate's Husband are collectively referred to as "Surrogate Couple". The Surrogate, Surrogate's Husband and the Intended Parents are collectively referred to hereinafter as the "Parties".

Purpose And Recitals
Intended Parents desire to have a child and desire to enter into Agreement, in order that they may become parents by means of the Surrogacy contemplated in the Agreement.

The Intended Mother warrants that she is incapable of conceiving or of carrying a pregnancy to term, or has been advised by a physician that a pregnancy would be dangerous to her health and/or the health of any child she may conceive.

Informed and Volutary Surrogacy
  • The Surrogate is at least twenty-one (21) years of age, a resident of the state of _____________, has borne ______ children, is currently married and also desires to enter into this Agreement.
  • The decision of the Surrogate to enter into this Surrogate Contract, is a fully informed decision made only after the careful and unemotional reflection of all aspects of this Agreement.
  • The Surrogate has come forward voluntarily, and in the absence of economic or emotional duress of any type or kind, and has freely chosen, with the support and consent of her Husband, to enter into this Surrogate Contract.

Surrogate parents Contracts to wave of their parental right
Surrogate states and declares that she does not desire to have a parental relationship with any child born pursuant to this Agreement. It is her further belief that the conceived child (hereinafter referred to as "Child") and carried pursuant to this Agreement are morally and contractually the Child of the Intended Parents, and that it is in the best interests of the Child that said Child should be raised by the Intended Parents without any interference by her, or her Husband, and without any retention, or assertion by her or her Husband of any parental rights.

Assist in legalizing the natural parent-child relationship
The Surrogate Couple further represent that they will freely and readily, within a reasonable time and only if necessary to effectuate the intent of the Parties hereto, assist in legalizing the natural parent-child relationship, and in order to aid the Intended Parents in the formation and/or continuance of their parent-child relationship with the Child. The Surrogate Couple shall immediately relinquish physical possession of the Child to the Intended Parents upon the birth of the Child, as such is anticipated to be in the best interest of the Child.

Surrogate's Waver of Parental Rights
Notwithstanding the foregoing, it is the specific intent of each and every Party to this Agreement, that the Surrogate Couple does not have any parental rights toward the Child and are not the legal parents of any Child born pursuant to the conduct contemplated within this Agreement.

Unenforceable Nature of the contract
  • While the undersigned are entering into this Agreement with the intention of being fully bound by its terms, each understand that this Agreement, in whole or in part, may be declared void as against public policy by the courts and/or legislature, or held unenforceable, in whole or in part, by a court of law.
  • All the parties have been informed of the provisions of Medical Termination of Pregnancy Act, IPC 312, AND ICMR Guidelines for Assisted Reproduction Techniques and the Adoption Laws as relevant to this contract.
Contract Not for Purchase or Adoption:
  • The sole purpose of this Agreement is to enable the Intended Parents to have a Child through the use of the services of a surrogate.
  • This is not intended to be an agreement for the purchase of a Child, nor for Surrogate's consent to surrender a Child for adoption.

No Warranties:
Surrogate Parenting is a new area of the law; and for that reason, all Parties to this Agreement acknowledge that no warranties have been made, or can be made, as to the ultimate results, costs, liabilities and/or obligations of the Parties relative to each other which may result from any judicial process arising and resulting from the actions and/or conduct of the Parties to this Agreement.

  1. Surrogates are a couple married and living together.
  2. The child in the womb has been conceived as a result of contraceptive failure.
  3. The surrogates do not wish to continue this pregnancy and have this unwanted Child as it will cause grave injury to the physical and mental health of the surrogate couple.
  4. The pregnancy is of less than 20 weeks duration as confirmed by the competent medical tests done by the medical attendant of surrogates.
  5. The surrogates are aware of the provisions of the MTP Act that entitles them to get this pregnancy terminated and were contemplating the same.
    Representations contd
  6. The intending childless parents, aware of the surrogates situation and predicament, have approached the surrogates with an offer to protect them from all injuries that the continuation of this pregnancy may cause, provided the surrogates agree to continue the pregnancy as surrogate parents for the benefit of intending parents.
  7. The intending parents request the genetic parents that instead of terminating their parental rights and willfully aborting the child at this stage of pregnancy, the genetic parents relinquish their parental rights in favor the intending parents.
  8. In the interest of their child in the womb, surrogate couple with desire to help a childless couple to acquire a child for parenting, the surrogates agree to accept the offer of the childless intending parents and accept to enter into a surrogacy contract to relinquish their parental rights forthwith, continue the pregnancy as surrogates and deliver the child soon after birth to the intending parents as per the terms, conditions and covenants of the contract.
  9. The Surrogate, based upon all information available to her, represents that the child in her womb is a healthy normal child developing normally and that she has given birth to normal healthy child in past and is capable of bearing another healthy and normal child.

  • In reliance upon this representation, the Intended Parents are hereby entering into this Agreement with the Surrogate, whereby:
    The Surrogate will not abort the child in the womb and continue the pregnancy after relinquishing their parental right in favor of the intending parents.

    The "Child" means the child born to the Surrogate who carry the pregnancy to term pursuant to the term of this Surrogate Contract;
  • The Surrogate Couple hereby agree to cooperate in all respects with the Intended Parents to carry the existing pregnancy to term for the Intended Parents, and further agree to cooperate with all legal actions to establish them as the Child's biological parent, including the amendment of the Child's birth certificate as needed.
  • The surrogate couple hereby agree and relinquish their parental right over the child in the womb in favour of the intending parents and further agree to continue the pregnancy under the assumed names of the intending parents and to deliver the child under the same names. All medical papers pertaining to surrogate will be made, where required, in the name of intending parents.
  • The Surrogate represents that she has consulted with a physician or surgeon of her choice, and is aware of all medical risks, including death, which may result from the conduct contemplated by this Agreement. The Surrogate acknowledges that said risks involve medical examinations, pregnancy, childbirth and postpartum complications, if any. These risks have been explained to the Surrogate by a physician following a thorough medical examination of the Surrogate. The Surrogate Couple agree to assume all of the above stated risks, and hold harmless against these risks, the Intended Parents, the attorneys representing the parties herein, including but not limited to the professionals and all others contemplated and/or involved in any aspect of performance under the terms of this Agreement. This does not release the medical professionals from liability for damages or injury due to acts of willful misconduct, negligence and/or medical malpractice. The Surrogate represents that she has signed all necessary medical release forms. The Intended Parents represent that they have signed all the necessary medical release forms.
  • The Intended Parents shall take custody of, and assume legal and parental responsibility for, the Child, as defined herein, regardless of whether the Child suffers from any congenital or other abnormalities or defects, immediately after the Child's birth, and the Parties to this Agreement acknowledge that they are aware and have been advised of said risks of such abnormalities and/or defects by their physician.
  • The Surrogate agrees to comply with all medical instructions given to her by the physician as well as the obstetrician or midwife, agreed to and engaged by the intending parents.
  • The Surrogate also agrees to follow a prenatal examination schedule as prescribed by her independent obstetrician or midwife, as well as to adhere to and follow all requirements regarding the taking of medicine and vitamins prescribed by her treating obstetrician or midwife. The Surrogate further agrees to submit to any medical tests or procedures deemed necessary or advisable by her obstetrician or midwife.

All medical and agreed living expenses will be paid by the Intended Parents.
  • The Surrogate agrees not to participate in dangerous sports or hazardous activities, and promises not to knowingly allow herself to be exposed to radiation, toxic chemicals or communicable diseases.
  • The Surrogate further agrees not to smoke any type of cigarettes, drink alcoholic beverages, or use any illegal drugs, prescription or non-prescription drugs without consent from her obstetrician or midwife.

    During the term of this Agreement, the Parties agree to immediately inform the other, in writing, of any material change in their circumstances which may reasonably affect this Agreement. These changes include, but are not limited to, change of address, illness or death of a Party, loss of employment, change of employment situation, changes in insurance coverage, and exposure to communicable illness.
  • The Parties warrant that all information contained in the various applications and written medical and psychological history questionnaires provided to the treating physician and psychologist/counselor in connection with this Agreement is true and correct to the best of their knowledge.

    The Parties further warrant that they have not knowingly omitted any material information relating to questions contained in the various applications and medical and psychological history questionnaires. Knowingly providing false or misleading information to the treating physician as specified herein shall constitute an incurable breach of this Agreement to which any and all legal and equitable remedies whether in personal injury or Contract apply.
  • If after the birth of the Child, the Intended Parents fail to fulfill any remaining financial obligations herein owing to Surrogate, or due and owing to a third party that has a right of collection against the Surrogate and/or her Husband, Surrogate shall submit a written demand to Intended Parents to pay such amounts. Any such demand must be received by Intended parents within six (6) months after the birth of the Child.

    Any such demand shall include any documentation Surrogate has available to her substantiating the unpaid obligation, such as bills, invoices or demands for payment. If the Intended Parents do not pay the unpaid obligation(s) within thirty (30) days after receiving the demand, then the Intended Parents shall be liable to the Surrogate and/or her Husband for the following sums: ………..

Medical termination of pregnancy i.e. killing one's own living child in the womb is extremely traumatizing for the mother. She bears life guilt. It is also cruel to the child. For an unwanted child, the proposed surrogacy contract provides a humane alternative. The legal fraternity should debate its validity.

Written By: Dr.Shri Gopal Kabra - MBBS, LLB, MSc, MS(Anatomy), MS(Surgery), PG Dip. Journalism
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur

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