Answer By law4u team
Surrogacy has emerged as an important assisted reproductive technology in India, allowing couples or individuals unable to conceive naturally to have children. The Surrogacy (Regulation) Act, 2021, along with existing family laws, governs surrogacy arrangements and establishes the legal parentage of children born through surrogacy. Importantly, these children have full rights to maintenance and financial support from their legal parents, ensuring their welfare and upbringing are protected regardless of their birth circumstances.
Legal Framework on Maintenance for Surrogacy-Born Children
Parental Recognition Under the Surrogacy (Regulation) Act, 2021:
This Act explicitly recognizes the commissioning parents (the couple or individual who commissioned the surrogacy) as the legal parents from the moment of the child’s birth. The surrogate mother relinquishes all parental rights, and the commissioning parents assume full responsibility.
Maintenance Rights Under Family Laws:
The Hindu Adoption and Maintenance Act, 1956, and Section 125 of the Criminal Procedure Code (CrPC) empower children to claim maintenance from their parents. These laws do not discriminate based on natural birth, adoption, or surrogacy. The legal parents are obligated to provide for the child's basic needs, education, medical care, and overall welfare.
No Discrimination Based on Birth Method:
Indian courts uphold the principle that all children, regardless of how they were born, have equal rights to maintenance. The method of birth does not reduce parental responsibilities under the law.
Liability of Both Biological and Commissioning Parents:
- If the commissioning parents are legally recognized as the child's parents, they bear the primary liability to maintain the child.
- Biological parents who are not commissioning parents generally do not have maintenance obligations unless legally recognized as guardians or adoptive parents.
- In cases where biological and commissioning parents differ, courts focus on legal parentage rather than biological ties.
Child’s Welfare as Paramount:
Family courts apply the best interests of the child standard in maintenance disputes, ensuring the child’s physical, emotional, educational, and medical needs are fully met.
Surrogacy Agreements Do Not Limit Maintenance Rights:
Even if the surrogacy contract states financial responsibilities, it cannot override the child’s right to claim maintenance under Indian law. The child’s right to support is protected and enforceable by courts.
Practical Considerations for Maintenance Claims
Filing a Maintenance Petition:
A child (or guardian) can file a petition in family court or under Section 125 CrPC against the legally recognized parents. The court examines financial capacities and needs to decide maintenance amounts.
Proof of Legal Parentage:
Proof such as birth certificates, surrogacy contracts registered under the law, and legal parentage documents help establish the responsibility.
Maintenance Amount and Duration:
Courts decide based on the child’s age, health, education, standard of living, and parents’ financial status. Maintenance usually continues until the child attains majority or completes education.
Special Cases:
For children with disabilities or special needs born through surrogacy, courts may extend maintenance obligations accordingly.
Judicial Interpretations and Precedents
- Indian courts have consistently affirmed the rights of children born through surrogacy to claim maintenance from commissioning parents.
- Courts reject attempts by commissioning parents to evade responsibility based on the surrogate’s involvement.
- The Supreme Court of India and various High Courts have underscored the principle of non-discrimination and best interests of the child in such matters.
Example:
A child born via surrogacy faced denial of maintenance from the commissioning father who claimed he was not the biological parent. The court, relying on the Surrogacy (Regulation) Act and family laws, held that the commissioning father is the legal parent and must pay monthly maintenance. The surrogate mother had no legal claim or obligation. The child was awarded sufficient maintenance covering education, medical expenses, and daily needs.
