Can Intended Parents Refuse to Take Custody After a Surrogacy Arrangement?

In surrogacy arrangements, the intended parents are usually responsible for taking custody of the child after birth, as they are the legal parents. However, the question arises whether intended parents can refuse to take custody of the child, and if so, what would be the legal consequences for both the intended parents and the surrogate mother. This situation involves legal, ethical, and child welfare considerations. The Surrogacy (Regulation) Act, 2021 and the Indian Adoption Laws provide clear guidelines on the responsibilities of intended parents in surrogacy cases.

Can Intended Parents Refuse to Take Custody?

Legal Parentage and Responsibilities

In India, under the Surrogacy (Regulation) Act, 2021, the intended parents are legally recognized as the child's parents once the surrogacy agreement is executed, and the child is born. The agreement establishes the parental rights of the intended parents, meaning they are responsible for the custody of the child after birth.

If intended parents wish to refuse custody of the child, this would contradict the legal responsibilities set forth in the surrogacy agreement, as they have agreed to take custody and parent the child.

The surrogacy contract typically does not provide an exit clause for the intended parents to renounce custody once the child is born, as it is an agreement to become parents legally and emotionally.

Legal Consequences of Refusing Custody

If intended parents refuse to take custody after the child’s birth, the situation can lead to legal complications:

• Surrogate Mother's Rights: The surrogate mother has agreed to carry the child on behalf of the intended parents. If the intended parents refuse custody, the surrogate mother may be legally obligated to take responsibility for the child, especially if the child’s welfare is at stake. According to Indian adoption laws, a surrogate mother could apply for custody if the intended parents back out, as she is the biological mother of the child.
• Child Protection and Welfare: In such a case, the child's welfare would be the primary concern of the authorities. If the surrogate mother refuses to keep the child, the Child Welfare Committee (CWC) would step in, and the child could be placed in institutional care or available for adoption.
• Breach of Contract: Refusing custody could be considered a breach of contract for the intended parents. The surrogacy agreement may outline penalties for failing to fulfill parental responsibilities, such as covering the surrogate's medical costs or compensating her for the inconvenience. However, this would primarily depend on the specific terms set in the agreement.

Surrogacy Agreement and Parental Commitment

A typical surrogacy agreement is legally binding, and both the surrogate mother and the intended parents agree to specific terms before the procedure begins. The agreement includes:

• The intended parents’ commitment to parent the child once born.
• The surrogate mother's agreement to carry the pregnancy and hand over the child to the intended parents after birth.

If the intended parents refuse to take custody of the child, they could face legal action from the surrogate mother or child welfare organizations, as their action would violate the terms of the surrogacy agreement and might be seen as abandonment.

Alternatives for the Child if Custody is Refused

If the intended parents refuse to take custody, several legal outcomes can occur:

• Surrogate Mother Takes Custody: If the surrogate mother is willing, she may take the child into her custody as the biological mother. In this case, she could legally become the child’s guardian.
• Adoption Process: If neither the surrogate mother nor the intended parents are willing to take responsibility for the child, the child may be placed under the Child Welfare Committee and be available for adoption through a legal process under the Juvenile Justice (Care and Protection of Children) Act, 2015. The child may be adopted by other individuals or families who meet the criteria for adoption.
• Intervention by Authorities: In cases where the child’s safety and welfare are at risk, the state authorities may intervene to ensure that the child is placed in a safe and supportive environment.

Impact on the Intended Parents

Refusing to take custody of the child could have serious consequences for the intended parents:

• Legal Action and Penalties: Depending on the terms of the surrogacy agreement, the intended parents could face financial penalties or be required to compensate the surrogate for medical and legal expenses. There could also be claims for damages if the surrogate suffers emotional or financial harm.
• Ethical and Moral Issues: Refusing to take custody may also raise ethical and moral questions, as it involves the abandonment of a child. Society may view such actions as neglectful, which could affect the reputation and future opportunities of the intended parents.
• Effect on Future Surrogacy: Intended parents who refuse custody of a child in a surrogacy arrangement may find it difficult to engage in future surrogacy agreements. Surrogacy clinics and agencies may be reluctant to work with such individuals due to the negative implications of their actions.

Indian and International Law Considerations

• International Surrogacy: If the intended parents are foreign nationals, refusing custody may complicate matters, especially if they have entered into surrogacy agreements in India. International surrogacy laws often require the parents to take responsibility for the child, and failure to do so can result in legal disputes between countries.
• Diplomatic Concerns: In cases involving foreign nationals, the embassy or consulate of the intended parents' country may become involved to ensure that the child’s citizenship and legal status are established. The intended parents may face diplomatic and legal pressure to take responsibility for the child.

Example

John and Sarah, a married couple from the United States, hire a surrogate in India. After the child is born, John and Sarah decide they no longer wish to take custody of the child due to personal reasons. The surrogate mother, who has already agreed to give the child to the parents, refuses to keep the child, and the Child Welfare Committee (CWC) is notified. The CWC intervenes, and the child is placed in an institutional care facility until the matter is resolved. The intended parents may face legal action for breach of contract and could be required to compensate the surrogate for medical expenses and damages.

Summary

In India, intended parents cannot legally refuse to take custody of a child born through surrogacy without facing significant legal consequences. The Surrogacy (Regulation) Act, 2021 places responsibility for the child on the intended parents, and refusing custody could lead to breach of contract claims, child welfare intervention, and the possible need for adoption. The surrogate mother may take custody if willing, or the child may be placed under the protection of state authorities, who will ensure the child's welfare. This situation can have legal, ethical, and emotional consequences for all parties involved, especially the child.