Surrogacy and Legal Parenthood in India. : Author : Gausia Noor Abbasi
Surrogacy has now become a major option for people and couples who have problems in getting pregnant or in carrying a pregnancy. At the same time, it raises complex questions regarding the legal status of the parents, the rights of the surrogate mother, the welfare of the child, and the possibility of exploitation. In order to deal with these issues, India introduced the Surrogacy (Regulation) Act, 2021. The present article examines the legal framework relating to surrogacy in India,
ARTICLE
Abstract
Surrogacy has now become a major option for people and couples who have problems in getting pregnant or in carrying a pregnancy. At the same time, it raises complex questions regarding the legal status of the parents, the rights of the surrogate mother, the welfare of the child, and the possibility of exploitation. In order to deal with these issues, India introduced the Surrogacy (Regulation) Act, 2021. The present article examines the legal framework relating to surrogacy in India, with a particular focus on legal parenthood and the rights of children who are born as a result of surrogacy. It also points out important judicial developments and the ongoing challenges within the current system.
Keywords
Surrogacy, Legal Parenthood, Surrogacy Regulation Act 2021, Surrogate Mother, Intended Parents, Child Rights
Introduction
Surrogacy involves a woman carrying a child to term with the intention that the child will be brought up by some other person or couple. In the case of gestational surrogacy, an embryo is placed into the surrogate mother, although she is not genetically related to the child. Surrogacy can offer the possibility of becoming a parent to those who have medical problems that make it difficult for them to carry a pregnancy. At the same time, it does raise legal issues about who should be considered the child's parents.
India was at one time seen as a major destination for commercial surrogacy, and since there was no comprehensive legislation in place this caused uncertainty and led to worries regarding the exploitation of economically vulnerable women. When the Supreme Court delivered its judgment in the case of Baby Manji Yamada v. Union of India, it pointed out a number of difficulties resulting from the lack of a specific legal framework. The passage of the Surrogacy (Regulation) Act, 2021 represented a major change as it sought to regulate the practice and clearly recognized the child born as a result of surrogacy as being the child of the intended parents.
Legal Framework Governing Surrogacy in India
The Surrogacy (Regulation) Act of 2021 allows only altruistic surrogacy and bans commercial surrogacy. Surrogacy is permitted in the case of a medical need which requires the use of a gestational surrogate and provided that other statutory conditions are met. The law also set up regulatory authorities and specifies the eligibility criteria for both the intended parents and the surrogate mothers.
The rules concerning surrogacy are set out in section 4 of the Act. The surrogate mother has to meet the eligibility criteria laid down and must give informed consent; she also has to be a woman who is permanently married, must have a child of her own, and must be within the prescribed age limits. It is important that the surrogate mother does not use her own gametes in the surrogacy procedure.
Legal Parenthood of the Child
The most important clause relating to legal parenthood is Section 8 of the Surrogacy (Regulation) Act, 2021, since it states that a child born as a result of a surrogacy procedure shall be regarded as the biological child of the intending couple or intending woman and shall have all the rights and privileges enjoyed by a natural child.
This provision offers a significant legal answer to the issue of parentage. A woman who gives birth to a child is not automatically considered the child's legal mother just because she carried the pregnancy; rather, the intended parent or parents are regarded as the child's legal parents within the statutory framework.
Section 7 also safeguards the child by preventing the couple intending to have the child or the intending woman from giving it up on the grounds of genetic defects, medical conditions, the child's sex or any other circumstances. This underlines the idea that the child's welfare and dignity must remain at the heart of any surrogacy arrangements.
Judicial Development: Baby Manji Yamada Case
Prior to the current law, the case of Baby Manji Yamada v. Union of India (2008) 13SCC 518 had shown the legal difficulties involved in surrogacy. The baby in question was born in India as a result of a surrogacy arrangement between Japanese intending parents; a dispute then developed over the child's custody and the matter of his travel, since the intending parents had not been married.
The judgment by the Supreme Court revealed the problems caused by there being no comprehensive surrogacy law at that time, and the case later became a key reference in debates about custody, parentage and the need for regulation of surrogacy in India.
Rights of the Surrogate Mother and the Child
The legal framework also includes provisions for the protection of the surrogate mother; according to Section 6 she must give her informed written consent before the embryo is implanted and the law also prohibits forced abortion in order to acknowledge the importance of her bodily autonomy.
The child is also given specific legal protection. Section 8 awards the child the status of a biological child of the intended parents, and Section 7 stops abandonment taking place. These measures are intended to make sure that the circumstances of birth do not have the effect of reducing the child's legal rights.
Yet there are still questions as to how surrogate mothers can be adequately protected, especially in cases where there is an imbalance of bargaining power between the parties. Legal protection can only be of any significance if informed consent, medical safety, insurance, and access to effective remedies are all properly put into effect.
Conclusion
The idea of motherhood and legal parenthood has been changed by surrogacy, since it has separated pregnancy, genetic contribution and legal responsibility. The Surrogacy (Regulation) Act of 2021 in India seeks to give clarity by regulating surrogacy, by banning commercial arrangements and by recognizing the intending parent or parents as the legal parents of the child.
Section 8 is of particular importance since it safeguards the child's legal status and gives a statutory foundation for establishing parentage. The Indian surrogacy law should therefore keep on developing in line with medical technology and changing family structures while still maintaining a child-focused approach.
References
The Surrogacy (Regulation) Act, 2021, Act No. 47 of 2021, Government of India.
2. The Surrogacy (Regulation) Rules of 2022 issued by the Ministry of Health and Family Welfare, Government of India.
3. The Surrogacy (Regulation) Amendment Rules of 2024 issued by the Ministry of Health and Family Welfare, Government of India.
4. The Surrogacy (Regulation) Amendment Rules of 2026 issued by the Ministry of Health and Family Welfare, Government of India.
5. Baby Manji Yamada v. Union of India (2008)