- 19-Apr-2025
- Healthcare and Medical Malpractice
Surrogacy can become legally complex when it intersects with marital disputes or divorce. In cases where a surrogacy arrangement is underway or has been completed, but the intended parents separate or divorce, the legal treatment of the surrogacy agreement and the custody of the child can raise significant questions. In India, surrogacy laws have been designed to protect the rights of the surrogate mother, the intended parents, and the child, but marital disputes complicate these rights and responsibilities.
In the case of marital disputes, the Surrogacy (Regulation) Bill, 2020 and related ART laws (Assisted Reproductive Technology) provide certain frameworks, but the situation is often still subject to judicial interpretation. The following factors are considered:
The intended parents' rights are generally protected under the surrogacy agreement, as long as the agreement was made with both partners’ consent. If a marital dispute arises and one of the intended parents (usually the mother or father) wants to dispute parental rights or custody, the matter may be taken to a family court for resolution.
If the couple divorces while the surrogacy pregnancy is still ongoing or before the child is born, the issue of custody may arise, especially if there are disagreements about the child's upbringing or the future of the surrogacy arrangement. In such cases, the best interest of the child becomes the guiding principle, and the court may consider the circumstances surrounding the divorce to make a ruling on custody. This includes factors like the ability of each parent to provide for the child, the child’s emotional attachment to each parent, and any disputes over who should have legal responsibility for the child post-birth.
In cases of divorce, if both intended parents have legally consented to the surrogacy, and the birth certificate names both individuals as parents, the parental rights generally remain intact, even if the parents divorce. However, if one parent contests their involvement in the child’s life, a legal guardianship issue may arise, and the courts may need to intervene to determine which parent is best suited to have primary custody or whether joint custody will be granted.
One of the most important aspects of surrogacy during a marital dispute is the surrogacy agreement itself. A legally valid surrogacy agreement can provide clarity on several issues related to parental rights and responsibilities.
The surrogacy agreement will often specify the parental rights of both the intended mother and father and can include provisions regarding what happens in the event of a marital separation or divorce. If the couple has signed a legally enforceable surrogacy agreement, both parties are generally bound by its terms unless one party can prove coercion or fraud during the process of agreement.
In cases of marital disputes, the consent of both parties is crucial. If one spouse withdraws consent during the surrogacy process or after the birth, it may lead to legal complications regarding the child’s custody and parental rights. Indian law requires that both parties to the surrogacy arrangement be legally married, and both must consent to the process. If the couple divorces before the birth of the child, the party who withdraws consent may find themselves unable to claim parental rights without going to court.
In India, surrogacy-related disputes during a divorce or marital separation are typically handled in family courts. Here are the general principles:
The principle of the best interest of the child is paramount in divorce cases involving surrogacy. Courts will evaluate the ability of each parent to provide a stable and healthy environment for the child. Courts will often ensure that the child’s physical and emotional well-being is not compromised, and they may decide on joint custody or grant full custody to one parent depending on the circumstances.
While there are no landmark judgments specifically related to surrogacy and marital disputes, the Indian courts often rely on the Hindu Minority and Guardianship Act, the Guardians and Wards Act, and the Surrogacy (Regulation) Bill, 2020 to adjudicate cases. Parental disputes often arise when one parent contests the other’s claim over the child after divorce. In cases where the surrogacy agreement is clear and both parties agreed to be the child’s parents, the courts typically uphold the agreement unless there is a clear violation of the child’s rights or welfare.
Example 1: A married couple undergoes a surrogacy process, and the surrogate mother successfully delivers a child. However, just before the child is born, the couple files for divorce. In such a case, both parents’ rights to the child typically remain protected as long as the surrogacy agreement was properly executed, and both parties consented to it. If one parent contests the other’s parental rights, a family court will decide based on the best interest of the child, with the presumption that both parents will share responsibility for the child unless evidence suggests otherwise.
Example 2: A couple undergoing surrogacy splits up after the embryo has been implanted, but before the birth of the child. One spouse decides they no longer wish to raise the child. The other spouse may have to fight for full custody, but the legal framework generally ensures that the surrogate mother’s rights and the rights of the child to have a stable home are prioritized.
Surrogacy during a marital dispute or divorce involves complex legal questions regarding parental rights, custody, and the validity of the surrogacy agreement. While the Surrogacy (Regulation) Bill, 2020 provides a legal framework to protect the rights of the surrogate mother and the intended parents, divorce complicates the issue of custody and parental consent. The courts typically uphold the best interest of the child and may grant custody to the parent who is best suited to provide a stable environment, regardless of the marital status of the parents. However, clarity and explicit terms in the surrogacy agreement can help reduce legal complications.
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