How Does Surrogacy Impact Parental Rights for Non-Biological Parents?

Surrogacy, especially when one or both of the intended parents are non-biological, can raise complex questions regarding parental rights and legal recognition. In cases where the intended parents are not genetically related to the child, the law must ensure that they are legally recognized as the legal parents of the child. In India, the Surrogacy (Regulation) Act, 2021 provides clear guidelines regarding how non-biological parents are recognized in surrogacy arrangements. The legal framework is designed to protect the rights of intended parents, ensure the welfare of the child, and safeguard the surrogate mother’s rights.

Impact of Surrogacy on Non-Biological Parents' Parental Rights

Establishing Legal Parentage

In surrogacy arrangements, especially altruistic surrogacy, where the intended parents are not biologically related to the child, the non-biological parent’s legal parental rights are established through the legal recognition process.

• Surrogacy Agreement: One of the critical steps is the surrogacy agreement, which is signed by the intended parents and the surrogate mother before the start of the surrogacy process. This legally binding document specifies the intentions of the intended parents to parent the child born through surrogacy, even if they are not biologically related to the child.
• In India, the Surrogacy (Regulation) Act, 2021 ensures that the intended parents (both biological and non-biological) are recognized as the legal parents once the child is born, regardless of genetic relationship.

Legal Recognition and Birth Certificate

Once the child is born, the non-biological parents’ rights are established through legal documentation:

• The intended parents (biological or non-biological) are entitled to be named as parents on the child’s birth certificate. This ensures that they are legally recognized as the legal parents of the child, even if they are not the biological parents.
• The surrogate mother, having relinquished her parental rights through the surrogacy agreement, is not listed as the legal mother in the birth certificate, unless she is biologically related to the child.

Parental Rights for Non-Biological Parents under the Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 explicitly recognizes both biological and non-biological parents as legal parents, provided that they meet the eligibility criteria set forth in the law. These criteria include being a heterosexual married couple, having medical proof of infertility, and being Indian citizens or overseas citizens of India (OCIs).

The law also protects the parental rights of non-biological parents by ensuring that both parents (if they are married) have equal rights and responsibilities towards the child, including custody and guardianship.

Role of the Surrogacy Agreement

In India, the surrogacy agreement plays a pivotal role in safeguarding the parental rights of non-biological parents:

• This legal contract explicitly states the intended parents' rights over the child and the surrogate mother’s obligation to relinquish her rights after the birth.
• The agreement ensures that the intended parents are legally entitled to custody of the child, regardless of whether they are the genetic parents. This is crucial in ensuring that the non-biological parent has equal parental rights, particularly in the case of same-sex couples or one non-biological parent in a heterosexual couple.

Custody and Guardianship Rights

Once the child is born through surrogacy, the non-biological parent’s rights to custody and guardianship are recognized:

• The intended parents, as per the surrogacy agreement, are granted immediate custody of the child after birth. Even if one parent is not the biological mother or father, they are legally recognized as the parent and have custodial rights over the child.
• If there is a dispute regarding custody or guardianship, the courts will typically favor the best interests of the child and uphold the parental rights outlined in the surrogacy agreement, assuming all legal formalities have been followed.

Challenges and Legal Considerations

International Surrogacy

In the case of international surrogacy, where the intended parents are foreign nationals, there can be additional challenges. Non-biological parents may face issues in securing the child’s citizenship and travel documents, especially if the country of residence of the parents does not easily recognize non-biological parentage.

Parental Rights in the Absence of a Legal Agreement

If a surrogacy agreement is not properly executed, or if the legal parentage is contested, non-biological parents may face challenges in asserting their rights over the child. It is crucial to have the agreement properly executed and registered with appropriate authorities.

Ethical Considerations for Non-Biological Parents

Ethical considerations arise in situations where the non-biological parent’s relationship with the child is questioned or undermined. The Surrogacy (Regulation) Act, 2021 ensures that non-biological parents are legally entitled to parental rights, but it also emphasizes the ethical obligations of both the surrogate and the intended parents to ensure the well-being of the child.

Non-biological parents may also face social or psychological challenges related to attachment and the bonding process with the child, particularly if the child is not genetically related.

Example

John and Mary, a married couple from Delhi, opt for surrogacy to have a child after struggling with infertility. Since John’s sperm is used to fertilize the egg, but Mary is not biologically related to the child, she is the non-biological parent. Despite this, both John and Mary enter into a surrogacy agreement with the surrogate mother, which legally establishes them as the intended parents. After the child is born, both John and Mary are listed as the child’s parents on the birth certificate, and they have full legal rights over custody, care, and guardianship of the child, even though Mary is not the biological mother.

Summary

Surrogacy arrangements, especially when non-biological parents are involved, require clear legal procedures to establish parental rights. In India, the Surrogacy (Regulation) Act, 2021 ensures that non-biological parents (whether part of a heterosexual couple or a same-sex couple) are legally recognized as the legal parents of the child born via surrogacy, even if they are not genetically related to the child. This is achieved through surrogacy agreements, which clearly define the parental rights of the intended parents, and through the recognition of the intended parents on the child’s birth certificate. Non-biological parents are entitled to custody, guardianship, and other legal rights as parents, ensuring that they are protected in the surrogacy process.