What Happens If the Intended Parents Divorce During the Surrogacy Process?

When intended parents divorce during the surrogacy process, it can create complex legal, emotional, and practical issues, especially for the surrogate mother and the child. The Surrogacy (Regulation) Act, 2021 in India provides a framework for handling surrogacy arrangements, including scenarios where the intended parents face marital dissolution. This situation raises questions about parental rights, child custody, and the surrogate's role.

In such cases, the law seeks to ensure that the child's well-being and legal status are protected, while also addressing the responsibilities of the intended parents and the surrogate mother.

Legal Implications and Steps in Case of Divorce During Surrogacy

Surrogacy Agreement and Parental Responsibility

The surrogacy agreement plays a crucial role in determining the rights and responsibilities of the intended parents. Typically, the agreement outlines:

• The legal parentage of the child and the intended parents' responsibilities.
• The parental rights of both individuals in case of unforeseen circumstances like divorce.

If intended parents divorce during the surrogacy process:

• The surrogacy agreement will often specify how custody and parental rights are to be handled if the marriage breaks down. This can involve provisions for one parent to retain parental rights, even if the other no longer wishes to participate in the surrogacy arrangement.
• In some cases, if both parents are listed as legal guardians, the dispute may have to be settled through the courts.

Legal Custody of the Child

Under the Surrogacy (Regulation) Act, 2021, the intended parents are generally considered the legal parents of the child, even if they divorce before the child’s birth. However, if the divorce happens during the surrogacy process, the legal implications for custody and guardianship may be affected:

• Custody can be decided by the family court in the case of divorce. If one parent is unwilling to take responsibility for the child, the other parent can apply for full custody.
• If both parents are unwilling to take custody of the child, the child may be placed under the care of a legal guardian until a final decision is made. The surrogacy agreement will often include provisions for such situations.

Adoption could become necessary if one or both parents decide not to take the child after birth.

Impact on the Surrogate Mother

If the intended parents divorce during the surrogacy process, the surrogate mother’s role and responsibilities typically remain unchanged. However, the legalities surrounding parental rights may create additional complications:

• Intended parents' agreement: The surrogate mother’s obligations and rights are usually outlined in the surrogacy contract, which would require her to follow the intended parents' wishes, unless those wishes conflict with her own legal rights.
• Medical Care: In the case of divorce, the surrogate mother may need to continue her medical care under the same agreement unless there is an issue with one or both intended parents not fulfilling their financial or legal obligations.
• Financial Responsibility: The intended parents, even after divorce, are still obligated to financially support the surrogate mother until the child’s birth, as agreed in the surrogacy contract.

Surrogate’s Role and Custody of the Child

The surrogate mother’s primary responsibility is to carry the pregnancy and deliver the child. She does not have legal rights to the child once it is born unless there are exceptional circumstances, such as a dispute over custody between the intended parents:

• Transfer of Parental Rights: If one of the intended parents is unable or unwilling to take responsibility for the child after divorce, the surviving intended parent can petition for custody. The surrogate mother will not be involved in the legal custody process unless the child’s well-being is in question.
• If the child is abandoned or the intended parents both relinquish their rights, the surrogate mother could potentially take on the responsibility of the child. However, this would require a legal process, and the surrogate would need to adopt the child formally.

Role of the Family Court

In cases of divorce, the family court becomes involved in determining the legal guardianship and custody of the child. The court will consider:

• Whether either intended parent is fit to assume responsibility for the child.
• If both intended parents are unwilling or unable to care for the child, the court may order the child’s placement with relatives or other guardians, or it may permit the surrogate mother to assume legal custody if no other option is viable.

The Surrogacy (Regulation) Act, 2021 does not explicitly address how surrogacy arrangements should be handled in the event of divorce. This is often addressed through court intervention where the family court can grant custody or direct the surrogacy clinic to support the decision.

Change in Legal Parentage

If the intended parents divorce before the birth of the child, the issue of parental rights might have to be addressed:

• One of the intended parents may still seek to be recognized as the legal parent of the child, even if the marriage has ended.
• If neither parent wants to assume parental rights after divorce, the child’s legal parentage could be altered by the family court, potentially involving an adoption procedure.

Potential for Adoption

If the divorce leads to one of the intended parents not assuming legal responsibility for the child, adoption may become a route for securing parental rights:

• The intended parent who wishes to raise the child could adopt the child in accordance with the Hindu Adoption and Maintenance Act (HAMA) or the Juvenile Justice Act (for non-Hindu families).
• Adoption proceedings can be complicated if the other intended parent does not consent to the adoption.

Example

Amit and Priya enter into a surrogacy agreement with Neha, a surrogate mother, to have a child. During the surrogacy process, Amit and Priya divorce. Priya wants to move forward with raising the child, but Amit does not want to participate in the child’s upbringing.

Amit and Priya had already agreed that they would share custody and responsibility for the child. After the divorce, Priya files for sole custody of the child, and Amit agrees to relinquish his parental rights.

The family court intervenes and grants Priya legal custody of the child, acknowledging the surrogacy contract but emphasizing the rights of the surrogate mother.

Neha, the surrogate, does not want to raise the child herself and continues to fulfill her medical and emotional obligations until birth, but she is not involved in any legal custody decisions.

Summary

When intended parents divorce during the surrogacy process in India, the legal implications can be complex. The surrogacy agreement typically dictates the responsibilities and rights of each parent, and the family court plays a key role in deciding custody and parental rights. In most cases, the surrogate mother continues her responsibilities until childbirth, but her role in the legal custody process is limited unless she takes on parental responsibility due to the intended parents' failure to act. The Surrogacy (Regulation) Act, 2021 ensures that the child's welfare is prioritized, and legal procedures for custody and adoption may be required if there are disputes between the intended parents.