Answer By law4u team
Child maintenance in cases of surrogacy or adoption is governed by distinct legal frameworks in India, as the parental and financial responsibilities differ based on the nature of the arrangement. In both cases, the key issue is the legal parentage of the child and the rights and responsibilities of the parties involved.
1. Child Maintenance in Surrogacy Cases:
Surrogacy in India is governed by the Surrogacy (Regulation) Bill, 2020, which establishes the legal relationship between the child, the surrogate mother, and the intended parents. The law distinguishes between commercial surrogacy (which is banned) and altruistic surrogacy, where a surrogate carries a child for intended parents without financial compensation.
Legal Parentage and Maintenance:
In cases of surrogacy, the intended parents (the biological or commissioning parents) are considered the legal parents of the child once the birth certificate is issued in their names. The intended parents assume full responsibility for the child’s welfare, including maintenance.
Maintenance Obligation:
- Intended Parents: The intended parents are responsible for the child’s maintenance, regardless of whether they were genetically related to the child or not. If the child is born through surrogacy, the intended parents must financially support the child as per the child’s needs, just as biological parents would.
- Surrogate Mother: The surrogate mother has no maintenance obligations once the child is handed over to the intended parents. However, the intended parents must pay for all medical expenses and support the surrogate during the pregnancy.
Legal Agreements:
It is crucial for the surrogacy agreement to outline the responsibilities of the intended parents towards the child, ensuring financial support for the child post-birth. The agreement typically includes maintenance provisions and ensures the child’s welfare until adulthood.
2. Child Maintenance in Adoption Cases:
Adoption in India is governed by several laws, with the primary one being the Hindu Adoption and Maintenance Act, 1956 (HAMA) for Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015, which applies to non-Hindu communities.
Legal Parentage and Maintenance:
In an adoption scenario, once the adoption is legally complete, the adoptive parents assume full legal responsibility for the child, including maintenance, just as biological parents would. The child becomes the legal heir to the adoptive parents' property and inherits their rights.
Maintenance Obligation:
- Adoptive Parents: Once the adoption is finalized, the adoptive parents are bound by law to provide maintenance to the adopted child, covering expenses for food, education, healthcare, shelter, and any other needs, just as biological parents would. The financial support continues until the child reaches adulthood or becomes financially independent.
- Adoption Laws: Under HAMA, adopted children have the same rights as biological children concerning maintenance. Under the Juvenile Justice Act, when children are adopted from orphanages or through child protection agencies, the adoptive parents are similarly required to provide for the child’s needs.
Financial Support:
If an adopted child is unable to receive adequate maintenance from the adoptive parents, the child can approach a family court for support. Additionally, if the biological parents or relatives are financially capable but unwilling to maintain the child, the adopted child has the right to claim maintenance from them under Section 125 of the Criminal Procedure Code (CrPC), as well.
3. Key Legal Provisions for Surrogacy and Adoption:
- Surrogacy (Regulation) Bill, 2020: This law regulates surrogacy agreements and ensures that the child born through surrogacy is entitled to the same rights as a child born to married biological parents. The intended parents are responsible for the child’s upbringing, maintenance, and welfare.
- Hindu Adoption and Maintenance Act, 1956 (HAMA): Under Section 20 of HAMA, the adoptive parents are obligated to provide maintenance for the adopted child. The child is entitled to support for food, shelter, medical care, and education, and this obligation continues until the child is able to support themselves or reaches adulthood.
- Juvenile Justice (Care and Protection of Children) Act, 2015: This law regulates the adoption process for non-Hindu children and ensures the child's well-being. It mandates that the adoptive parents provide maintenance until the child becomes self-sufficient.
Example:
Case Scenario (Surrogacy):
A couple undergoes surrogacy and commissions a surrogate mother to carry their child. After the child’s birth, the intended parents are legally recognized as the child’s parents and are required to provide for the child’s maintenance, including expenses related to healthcare, education, and general upbringing. The surrogate mother has no further financial obligations once the child is handed over.
Case Scenario (Adoption):
A couple adopts a child through the Juvenile Justice Act after the child’s biological parents are deemed unfit. The adoptive parents are now legally responsible for the child’s maintenance, including providing food, shelter, education, and medical care until the child reaches adulthood or financial independence.
Conclusion:
In cases of surrogacy, the intended parents assume full maintenance obligations for the child once they take legal parentage, regardless of biological connection. In adoption, the adoptive parents are responsible for the child’s maintenance, which is legally mandated and equivalent to the responsibility of biological parents. Both surrogacy and adoption are governed by specific legal frameworks that ensure the child’s welfare, including the obligation of the parents (biological or adoptive) to provide for their financial needs.
