Rights of Surrogate Parents in Guardianship Disputes: An Emerging Legal Concern in India

Abstract:

The rise of surrogacy in India has generated a host of legal, ethical, and social questions, particularly concerning the rights of surrogate parents in guardianship disputes. While surrogacy provides a pathway to parenthood for many couples unable to conceive naturally, it also presents complex legal challenges regarding the rights of biological, surrogate, and intended parents. This article explores the evolving legal landscape surrounding surrogacy in India, with a specific focus on guardianship disputes and the rights of surrogate mothers. It examines the existing legal framework, the role of the judiciary in interpreting parental rights, and the impact of recent legislation such as the Surrogacy (Regulation) Act, 2021. The article argues for a balanced legal approach that protects the rights of all parties involved while prioritizing the welfare of the child.

Keywords: Surrogacy Law, Legal Guardianship, Reproduction Technologies in India, Medical Advancement.

 

Introduction:

Hence, there has been a growing trend of people in India opting for the technique in the hope of using surrogacy as a way of fulfilling their desire to become parents when faced with challenges of infertility or complications that may come with pregnancy. Nevertheless, as the numbers of surrogacy agreements have increased, many problems with parental rights and guardianship have emerged. To whom does the child belong? Once the child is born what legal rights does the surrogate mother have? These questions have emerged in India’s legal discussions, especially when surrogacy was finally brought under the ambit of Surrogacy (Regulation) Act, 2021[1].

Unbeknownst to it, India has emerged as a rapidly growing hub of a fertility market with ‘reproductive tourism,’ said to be valued at Rs. 25,000 crores. Also known as ‘Assisted Reproductive Technology’ (ART), it has been practiced in India since 1978 and now more than 2,00,000 clinics in the country are involved in Artificial Insemination, IVF and Surrogacy. To such an extent that in the recent decision of the Supreme Court in India in Baby Manji Yamada’s case, it has been noticed that “commercialization of surrogacy” on industrialization parameters to an extent that has been labelled as ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’. This is presumably considered legal because there is no surrogacy law in India that expressly banning the practice.

Surrogacy in India: Background and Legal Framework:

Surrogacy in India is currently legal, governed by guidelines from the Indian Council of Medical Research (ICMR) and recommendations from the 228th Law Commission Report. While there is now specific legislation on surrogacy, these guidelines regulate Assisted Reproductive Technology (ART) and surrogacy arrangements[2].

Key points from the 228th Law Commission Report include:

• Surrogacy arrangements are governed by contracts between the parties, covering consent, medical procedures, and expenses, but must not be commercial.
• The contract should ensure financial support for the surrogate child in case of the commissioning parents’ death or divorce.
• Life insurance for the surrogate mother is mandatory.
• At least one intended parent must be a biological donor to strengthen the parent-child bond and reduce risks of child abuse.
• The surrogate child should be legally recognized as the legitimate child of the commissioning parents, with their names on the birth certificate.
• The privacy of both the donor and the surrogate mother must be protected.
• Sex-selective surrogacy is prohibited, and abortion is regulated by the Medical Termination of Pregnancy Act, 1971.

To regulate the practice and protect the rights of all parties involved, the Indian government introduced the Surrogacy (Regulation) Act, 2021. The Act bans commercial surrogacy, allowing only altruistic surrogacy, where no financial compensation (beyond medical expenses) is given to the surrogate mother. The law also lays down several criteria for intended parents and surrogate mothers, such as age limits, marital status, and medical justifications for undergoing surrogacy.[3]

While the Act aims to protect surrogate mothers from exploitation and ensure ethical surrogacy practices, it has also sparked debates about the rights of surrogate parents, particularly in the context of guardianship and custody disputes.

Who is the Legal Mother in Surrogacy in India?

This can be supported by the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics as stated by ICMR (2005) as follows “Where the child has been born out of gestational surrogacy, the surrogate mother shall not be regarded as the legal mother. They remain the birth certificate on the names of the genetic or intended parents and not the surrogate[4].

The guidelines recognize that the intended parents, biologically related to the child, are the legal parents. Surrogate mothers, even though they carry the child, hold no parental rights. Furthermore, sperm or oocyte donors also have no parental claims, and their identities are protected.

The child born through Assisted Reproductive Technology (ART) is presumed to be the legitimate child of the intended parents, enjoying full rights of parentage, support, and inheritance. This framework ensures that the surrogate or donors have no legal standing regarding parental rights over the child[5].

Rights and Duties in relation to Surrogacy:

In surrogacy arrangements, both the intended parents and the surrogate mother must enter into a legally enforceable agreement outlining their rights and duties. The intended parents bear all pregnancy-related expenses, including insurance, and may also provide monetary compensation to the surrogate as agreed upon. Importantly, the surrogate relinquishes all parental rights over the child, who will be legally recognized as the offspring of the intended parents, with their names on the birth certificate. Surrogates must be between the ages of 21 and 45 and can participate in up to three live births. Prior to acting as a surrogate, they must undergo medical testing to ensure no health risks are posed to the child[6].

Surrogacy services can be sought publicly, but advertising based on caste, ethnicity, or descent is strictly prohibited. Surrogates are required to register at medical facilities in their own name, while also providing information about the genetic parents. If the first embryo transfer fails, the surrogate may agree to two additional transfers for the same couple. Intended parents are legally bound to accept the child, regardless of any abnormalities, and refusal constitutes an offense[7].

The surrogate’s personal information is kept confidential, except in the case of a court order. Additionally, the surrogate cannot donate her oocytes to the intended parents, and ART clinics are prohibited from disclosing information about surrogates. If the surrogate is married, her spouse’s consent is required. Upon the completion of the surrogacy arrangement, the surrogate will be issued a certificate acknowledging her role. Relatives, acquaintances, or strangers may act as surrogates, though relatives must be from the same generation as the intended mother[8].

For foreign nationals and non-resident Indians (NRIs), a local guardian must be appointed to oversee the surrogate’s care, ensuring that all necessary arrangements are made for the child’s custody after birth. Only one surrogate can be engaged at any given time, and simultaneous embryo transfers in both the intended mother and surrogate are prohibited. These guidelines ensure a well-regulated process that protects the rights and interests of all parties involved in surrogacy.

Guardianship Disputes in Surrogacy: Legal Challenges

One of the most contentious issues in surrogacy arrangements is the question of guardianship—who has the legal right to care for and make decisions on behalf of the child. Under the Surrogacy (Regulation) Act, the child born from surrogacy is to be considered the child of the intended parents from the moment of birth. However, this clear legal position does not prevent disputes from arising[9].

1. Rights of Surrogate Mothers

A key issue is the extent to which surrogate mothers have any claim to parental or guardianship rights. Traditionally, the role of the surrogate mother ends once the child is born, and she hands over the child to the intended parents. However, disputes may arise if the surrogate mother has a change of heart or if the surrogacy agreement is not clear or enforceable.

The law in India presently favours the intended parents, but there is no explicit provision granting or denying rights to surrogate mothers in case of a guardianship conflict. The surrogate mother’s rights remain undefined in many ways, and this legal ambiguity has led to several judicial interpretations. Courts have typically sided with the intended parents, but surrogate mothers may still have limited legal standing, especially in the absence of a formal surrogacy agreement or in cases where exploitation or duress is alleged.

2. Rights of Intended Parents

Intended parents are typically considered the legal guardians once the child is born, as per the surrogacy agreement and the provisions of the Surrogacy Act. However, challenges arise when there is a dispute over custody, especially if the intended parents refuse to take responsibility for the child due to unforeseen circumstances, such as the birth of a child with disabilities or the breakdown of the relationship between the intended parents.

The intended parents’ rights are generally protected under the law, but cases where they seek to revoke their commitment to the child create complex legal dilemmas. In such cases, the court may intervene to determine the child’s best interest, and guardianship may be awarded differently[10].

3. The Role of the Judiciary in Guardianship Disputes

In guardianship disputes involving surrogacy, Indian courts have consistently prioritized the welfare of the child. The “best interest of the child” principle is central in resolving these disputes. Courts have, in some cases, invalidated surrogacy agreements that they find exploitative or contrary to public policy, while in others, they have upheld the agreements when they clearly outline the roles and responsibilities of all parties involved.

For instance, in cases where the surrogate mother attempts to assert parental rights post-birth, courts often examine whether the surrogacy agreement was fair, voluntary, and in the best interest of the child. The judiciary also considers the emotional and psychological bonds that the surrogate mother may have developed with the child, though these are usually secondary to the legal rights of the intended parents.

Surrogacy (Regulation) Act, 2021: Impact on Guardianship Disputes

The Surrogacy (Regulation) Act, 2021, is a significant step in providing a legal framework for surrogacy in India. However, the Act does not comprehensively address guardianship disputes, leaving a legal vacuum that may lead to increased litigation[11].

The Act explicitly prohibits commercial surrogacy, which may reduce the number of international surrogacy arrangements but does not completely eliminate potential disputes. Moreover, the Act does not specify the rights of surrogate mothers in detail, particularly in the case of disputes over the custody or welfare of the child. This lack of clarity in the law could lead to continued reliance on judicial interpretations, which vary depending on the circumstances of each case.

Conclusion and Recommendations:

The rise of surrogacy in India has opened doors to parenthood for countless couples facing infertility, but it has also introduced complex legal and ethical questions, particularly concerning parental rights and guardianship disputes. While the Surrogacy (Regulation) Act, 2021 aims to regulate surrogacy practices by banning commercial surrogacy and emphasizing altruistic arrangements, it does not fully address all legal challenges. Specifically, issues surrounding the rights of surrogate mothers and intended parents in guardianship disputes remain unresolved. The law predominantly favors intended parents, designating them as the legal guardians from the moment of birth, yet it fails to offer clear guidelines on handling disputes, especially in cases of surrogacy agreements being unclear or not properly enforced.

The judiciary has consistently prioritized the welfare of the child, applying the “best interest of the child” principle in guardianship cases. However, the reliance on judicial interpretation rather than comprehensive legal provisions leaves room for inconsistency. Surrogate mothers, despite relinquishing parental rights, may still face legal challenges in cases of disputes or exploitation, highlighting a gap in the law that demands more specific protections and recourse for them.

Recommendations[12]:

1. Amendment of the Surrogacy (Regulation) Act: Clear provisions must be added to address the legal standing of surrogate mothers in the event of a guardianship dispute, while ensuring that intended parents cannot abdicate their responsibilities toward the child.
2. Stronger Enforcement of Surrogacy Agreements: Enforceable contracts, with strict adherence to guidelines, should be mandatory to minimize disputes and ensure the rights and obligations of all parties are protected.
3. Judicial Guidelines on Guardianship Disputes: Comprehensive judicial guidelines should be introduced to provide uniformity in court decisions, particularly emphasizing the protection of surrogate mothers from exploitation while ensuring the best interests of the child.
4. Counselling and Mediation Services: To minimize disputes, mandatory counselling and mediation services should be offered to all parties involved in surrogacy to ensure they fully understand their rights and obligations.

These steps will foster a more balanced legal framework that protects the rights of all parties involved and ensures the welfare of the child.

 

References:

[1] SURROGACY (REGULATION) ACT, 2021 IN INDIA: PROBLEMS AND PROSPECTS Aequitas Victoria, https://www.aequivic.in/post/surrogacy-regulation-act-2021 -in-india-problems-and-prospects (last visited Sep 8, 2024).

[2] Surrogacy in India: Complete Guide about Regulations & Legal Implications that you need to know Legal Desire Media and Insights, https://legaldesire.com/surrogacy-in-india-complete-guide-about-regulations-legal-implications-that-you-need-to-know/  (last visited Sep 8, 2024).

[3] The Legality of Commercial Surrogacy in India, https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ (last visited Sep 8, 2024).

[4] Explained: Surrogacy law in India The Analysis (TA), https://theanalysis.org.in/explained-surrogacy-law-in-india/  (last visited Sep 8, 2024).

[5] Suchitra Karthikeyan, Explained: Surrogacy & Assisted Reproduction in India – laws, offence & problems, The Hindu, May 29, 2022, https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece  (last visited Sep 8, 2024).

[6] Rights of a child in a surrogacy agreement iPleaders, https://blog.ipleaders.in/rights-child-surrogacy-agreement/ (last visited Sep 8, 2024).

[7] The emerging laws relating Surrogacy: A procreational right for Single Parent, Transgenders and Foreigners SCC Times, https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/  (last visited Sep 8, 2024).

[8] SURROGACY ISSUES IN INDIA, https://www.linkedin.com/pulse/surrogacy-issues-india-apurva-agarwal  (last visited Sep 8, 2024).

[9] , https://www.ijlra.com/paper-details.php?isuurl=-surrogacy-and-surrogate-mother%E2%80%99s-claim-to-guardianship-of-surrogate-child-by-shrusti-mulgund  (last visited Sep 8, 2024).

[10] Dafni Lima, Legal parenthood in surrogacy: shifting the focus to the surrogate’s negative intention, 46 Journal of Social Welfare and Family Law 245–266 (2024), https://www.tandfonline.com/doi/full/10.1080/09649069.2024.2344935  (last visited Sep 8, 2024).

[11] How the new surrogacy bill impacts both surrogates and parents India Today, https://www.indiatoday.in/india-today-insight/story/how-the-new-surrogacy-bill-impacts-both-surrogates-and-parents-1886894-2021-12-12  (last visited Sep 8, 2024).

[12] Legal Landscape of Surrogacy In India, https://lawfullegal.in/navigating-legal-landscape-of-surrogacy-in-india/ (last visited Sep 8, 2024).