Surrogacy arrangements, especially when involving gestational surrogacy (where the surrogate mother carries an embryo that is not biologically hers), raise complex legal questions about parental rights, inheritance, and succession. A common question concerns whether a child born through surrogacy can claim inheritance from the surrogate mother. Indian law primarily focuses on the biological parents as the legal parents of the child, and typically, inheritance claims are directed toward the biological parents' estate. However, the legal status of the surrogate mother and her rights with respect to the child must be understood to determine the potential for inheritance.
Under Indian law, especially as outlined in the Surrogacy (Regulation) Bill, 2020, the biological parents (intended parents) are considered the legal parents of the child born through surrogacy. The surrogate mother is generally not regarded as the legal mother of the child after birth. This means that:
a. Inheritance Rights under Indian Law:
In gestational surrogacy, since the surrogate mother is not the legal or biological mother (except in cases of traditional surrogacy), the child cannot claim inheritance from the surrogate mother’s estate unless there is a specific provision made in her will. Indian inheritance law, particularly Hindu law, treats the child as the heir of the biological parents (in the case of gestational surrogacy). The surrogate mother does not have any legal rights to pass on her property or assets to the child unless she formally adopts the child or has made specific arrangements in her will.
b. Inheritance Rights in Traditional Surrogacy:
In traditional surrogacy, where the surrogate mother provides the egg, the situation is slightly different. In this case, the child has a genetic connection to the surrogate mother. However, this genetic link does not automatically give the child inheritance rights from the surrogate mother’s estate unless the surrogate mother has legally acknowledged the child as her own (through adoption, for example).
c. Inheritance from the Intended Parents:
In both types of surrogacy, the child born through surrogacy inherits from the intended parents once the legal parentage is established through the birth certificate or a court order. The surrogate mother is not entitled to inherit from the child, nor can the child inherit from her estate unless the surrogate has made provisions through a will or adoption.
a. Surrogacy (Regulation) Bill, 2020:
The Surrogacy (Regulation) Bill, 2020 recognizes the intended parents as the legal parents of the child. This legislation aims to protect the rights of the child, ensuring that inheritance rights are connected to the intended parents and their family. The intended parents are granted full parental rights over the child, which includes the right to pass on their property to the child. The child’s inheritance rights are thus secured through the biological or legal connection to the intended parents.
b. Role of the Surrogate in Inheritance:
The surrogate mother’s role is confined to carrying the pregnancy. Even though she may provide the nurturing environment for the child during pregnancy, the law typically does not recognize her as having any inheritance rights with respect to the child after birth. Unless the surrogate has made specific legal arrangements, such as adopting the child or naming them in a will, the surrogate mother does not have any claim to the child’s estate or vice versa.
Example 1: A child is born through gestational surrogacy where the surrogate mother carries the embryo created from the intended parents’ sperm and egg. After birth, the child is legally recognized as the child of the intended parents and inherits from them. The surrogate mother, even though she carried the pregnancy, does not have any claim to the child’s inheritance. If she passes away, the child has no claim to her estate.
Example 2: In a case of traditional surrogacy, the surrogate mother provides her egg, making her the genetic mother of the child. However, the intended parents are still considered the legal parents. If the surrogate has not formally adopted the child or made provisions for the child in her will, the child cannot inherit from her, even though she is genetically related.
In India, a child born through surrogacy cannot claim inheritance from the surrogate mother, except under special circumstances. The Surrogacy (Regulation) Bill, 2020 and existing Indian inheritance laws emphasize the intended parents as the legal parents and heirs of the child, securing the child's inheritance rights through them. In gestational surrogacy, the surrogate has no legal parental rights or inheritance claim, while in traditional surrogacy, the surrogate may have a genetic connection to the child but does not automatically pass on any inheritance unless legally formalized through adoption or a will.
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