How are child custody cases involving children born through surrogacy handled in India?

Answer By law4u team

Child custody cases involving children born through surrogacy in India are handled with specific legal considerations. Here are the key points regarding this: 1. Legal Framework Surrogacy Regulation Bill: While the Surrogacy (Regulation) Bill is yet to be fully enacted, it outlines provisions regarding the rights of intending parents and the status of children born through surrogacy. 2. Intending Parents' Rights Legal Parentage: The intending parents (commissioning parents) are recognized as the legal parents of the child born through surrogacy, provided they have followed legal procedures. 3. Custody Considerations Best Interests of the Child: Courts prioritize the best interests of the child in custody disputes, similar to other custody cases. Factors such as the child’s welfare, stability, and emotional bond with the parents are considered. 4. Surrogacy Agreements Validity of Agreements: Courts may examine the surrogacy agreement to determine the intentions and rights of the parties involved, including the custody rights of the commissioning parents. 5. Surrogate's Role Limited Rights: The surrogate mother typically does not have legal rights over the child once the child is handed over to the commissioning parents, as per existing legal norms. 6. Judicial Precedents Court Rulings: Indian courts have adjudicated several cases involving surrogacy, often upholding the rights of commissioning parents while ensuring the child's welfare. 7. Legislative Changes Future Regulations: Ongoing discussions regarding the Surrogacy Regulation Bill may introduce more concrete guidelines for custody and parental rights in surrogacy cases. 8. Court's Discretion Individual Assessments: Courts have the discretion to assess each case individually, taking into account the unique circumstances surrounding the surrogacy arrangement. Conclusion Child custody cases involving surrogacy in India are handled by recognizing the rights of commissioning parents while prioritizing the child's best interests. Legal frameworks and ongoing legislative developments continue to shape this evolving area of law.

Answer By Ayantika Mondal

Dear Client, Child custody matters are mainly governed by two legislations in India, namely – the Surrogacy (Regulation) Act, 2021, the Guardians and Wards Act, 1890. It is the presumption under law that the intended parents, the ones who commissioned the surrogacy and have been named in the legal agreement, are to be given the status of legal parents of the surrogate child. The legal parents hold all the rights including custodial rights, parental rights, and any right related to inheritance. The surrogate mother, however, has no parental rights over the child once the child is born. If afterwards, any custody dispute arises in case of a surrogate child, for instance – during divorce or separation, the family court looks at the same factors as it does in custody disputes of a normal born child. These factors are – best interests and welfare of the child, emotional care, financial stability, upbringing environment, and etc. Based on these factors, the court decides which parent should the custody be granted and if there shall be any visiting rights granted to the other parent. I hope this answer helps. For any further queries, please do not hesitate to contact us. Thank you.