- 19-Apr-2025
- Healthcare and Medical Malpractice
A divorce during the surrogacy process can introduce a range of legal, ethical, and emotional complexities for all parties involved, including the intended parents, the surrogate mother, and the child. The Surrogacy (Regulation) Bill, 2020 and other legal frameworks governing surrogacy in India primarily aim to protect the rights of the child and establish clear legal parentage. However, a divorce between the intended parents during the process could lead to disputes over parental rights, custody, and even the surrogacy contract, complicating the situation for everyone involved.
a. Parental Rights of the Intended Parents:
Legal Parentage: In most surrogacy arrangements, the intended parents are considered the legal parents of the child, even before birth, as long as they are the biological parents (in gestational surrogacy). However, a divorce could create a legal dispute over who will have custody of the child after birth and who will be responsible for the child’s welfare.
Custody Disputes: If the intended parents divorce during the surrogacy process, the couple may face legal battles over custody, especially if the divorce occurs before the child is born. If both parents were legally acknowledged as the intended parents at the time of conception, it is usually assumed that they will share parental rights, but disputes may arise regarding who will take primary custody after birth.
Rights of the Non-Biological Parent: If the divorce occurs and one of the intended parents is not biologically related to the child (e.g., in cases where an egg or sperm donor was involved), that parent’s legal rights could be questioned. The non-biological parent may need to seek a court order to establish their rights to parent the child.
b. Impact on Surrogate Mother:
The surrogate mother is typically not involved in the legal parentage dispute, as she is considered a gestational carrier. However, complications could arise if she has concerns about the intended parents' ability to care for the child after birth due to their marital discord.
a. Surrogacy Contracts and Divorce:
A well-drafted surrogacy contract typically outlines what happens in the event of a divorce. Many contracts specify that the intended parents are responsible for ensuring the child’s well-being, regardless of their marital status. In cases where the intended parents divorce, the surrogacy contract may need to be reviewed to ensure that the intended parent-child relationship remains intact.
Legal Disputes Over Contracts: If the couple cannot agree on whether they should move forward with the surrogacy process after the divorce, there could be legal disputes over the contract terms. For example, one parent might decide to cancel the surrogacy, while the other may wish to proceed. In such cases, court intervention may be necessary to resolve the issue.
a. Legal Status of the Child:
In the case of a gestational surrogacy where both intended parents are genetically related to the child, the child’s legal parentage is typically clear. However, a divorce between the intended parents could lead to questions about custody and parental rights, especially if the couple was unable to agree on their future responsibilities toward the child.
The child’s welfare should always remain a priority, and courts may intervene to ensure that the child’s best interests are safeguarded. The intended parents are usually expected to demonstrate that they can provide for the child, even in the event of a divorce.
b. Emotional Impact on the Child:
Divorce during surrogacy could cause emotional distress to both the intended parents and the child. While the child’s birth would generally proceed as planned, the absence of both parents’ support post-birth may impact the child’s emotional development. Furthermore, prolonged legal disputes over custody can lead to confusion and stress for the child once born.
a. Surrogacy Laws and Parental Disputes:
In India, the Surrogacy (Regulation) Bill, 2020 is aimed at ensuring that surrogacy is done ethically and within a legal framework. However, the Bill does not provide clear guidelines for handling cases where divorce occurs during the surrogacy process. This can lead to legal uncertainty and the need for court rulings on issues such as custody, parental rights, and the validity of the surrogacy contract.
The Biological Connection: A divorce could raise questions about the genetic link between the child and the intended parents. Courts may need to verify parentage through DNA tests if there is any dispute regarding the identity of the biological parents.
Adoption of the Child: If the couple divorces and one of the parents refuses to acknowledge parental rights, the other parent might need to seek an adoption process to establish legal parentage over the child.
b. Surrogacy in Cases of Marital Separation:
Interim Orders: In cases where the intended parents are in the process of divorce, the court may issue interim orders to ensure the welfare of the child during the surrogacy process. These orders could address issues related to parental responsibilities, medical decisions, and the surrogate's rights to compensation.
Example 1: A couple undergoing gestational surrogacy separates after the embryo has been implanted in the surrogate. Although the divorce impacts their relationship, both parents are still legally considered the intended parents. They may both be required to sign the birth certificate and establish a parenting plan post-birth. However, if one parent is not biologically related to the child (e.g., in the case of egg or sperm donation), there may be additional steps required, such as obtaining a court order to confirm the non-biological parent’s rights.
Example 2: In the case of traditional surrogacy, where the surrogate mother provides her egg, the biological connection between the surrogate and the child is clear. If the intended parents divorce during the surrogacy process, there could be confusion regarding the surrogate’s claim to parental rights, especially if she has emotional attachment to the child. Legal clarity may be needed to ensure the intended parents' continued parental rights over the child, regardless of the marital breakup.
A divorce during the surrogacy process can significantly impact the legal status of the child, the parental rights of the intended parents, and the surrogate’s rights. While legal parentage is usually clear in cases of gestational surrogacy, custody and parental responsibility disputes can arise if the couple divorces. Surrogacy agreements should address such contingencies to minimize legal complications, but in many cases, court intervention may be necessary to resolve issues relating to custody, parental rights, and the child's best interests. The Surrogacy (Regulation) Bill, 2020 and existing laws aim to protect the rights of the child, but divorce during the surrogacy process creates a need for additional legal clarity.
Answer By Law4u Team
Discover clear and detailed answers to common questions about Family Law Guides. Learn about procedures and more in straightforward language.
