Legal complexities of surrogacy: Balancing rights, responsibilities, and parenthood

Abstract

Surrogacy, as a method of assisted reproduction, presents numerous legal complexities that challenge traditional notions of family, parenthood, and bodily autonomy. It involves multiple stakeholders, including the surrogate, intended parents, medical professionals, and the child, each with distinct rights and responsibilities. The legal frameworks governing surrogacy vary across countries, with some nations embracing it under regulated systems while others prohibit it due to ethical concerns. In India, the absence of comprehensive legislation on surrogacy has led to various legal ambiguities, particularly concerning the enforceability of surrogacy agreements, parentage determination, and the rights of the surrogate mother. The case of Baby Manji Yamada highlighted the absence of clear guidelines, leading to citizenship and parental issues, especially in cross-border surrogacy arrangements.This study explores the key legal challenges surrounding surrogacy, including the status of the surrogate mother, nationality of children born through surrogacy, custodial rights, and confidentiality issues. It critically examines the role of the Indian Contract Act of 1872, the Assisted Reproductive Technology (Regulation) Bill of 2010, and relevant judicial decisions in shaping the current landscape of surrogacy law in India. The paper also addresses moral concerns related to the commodification of maternity and the implications of commercial surrogacy. Through case studies, the research identifies the critical gaps in the existing legal framework and advocates for comprehensive legislation to protect the rights of all parties involved, including surrogates, intended parents, and children.The study concludes that the legal framework for surrogacy in India remains fragmented and incomplete, often leaving stakeholders vulnerable to exploitation and disputes. A well-defined, ethical, and enforceable legal structure is essential to mitigate these risks and ensure the protection of human rights in surrogacy arrangements.