Legal Parentage in Surrogacy

Key Takeaways

• Legal parentage in surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021. The law determines who is legally recognised as the parent of a child born through surrogacy and establishes the rights and responsibilities arising from that relationship.
• The intending couple or intending woman is legally recognised as the parent or parents of the child. Under Section 8 of the Surrogacy (Regulation) Act, 2021, a child born through surrogacy is deemed to be the biological child of the intending couple or intending woman and receives the rights and privileges available to a natural child under applicable law.
• The surrogate mother does not become the legal mother merely because she gives birth to the child. Indian law recognises gestational surrogacy, where the surrogate mother carries the child without contributing her own gametes.
• A judicial order concerning parentage and custody is required before surrogacy proceeds. Section 4(iii)(a)(II) requires an order from a court of a Magistrate of the First Class or above concerning the parentage and custody of the child to be born through surrogacy.
• Children born through surrogacy have legally protected rights. These include rights relating to family status, maintenance, inheritance and parental care under applicable laws.
• Genetic parentage and legal parentage are not always identical. The law permits donor gametes in specified circumstances, while legal parentage continues to be determined by the statutory framework.
• Birth certificates and other legal records must correctly reflect the child’s recognised parentage. The judicial parentage order and the provisions of the Surrogacy (Regulation) Act, 2021 play an important role in establishing the child’s legal identity.

What Is Legal Parentage in Surrogacy?

Legal parentage in surrogacy refers to the legal relationship between a child born through surrogacy and the persons recognised by law as the child’s parents. It determines who has parental rights, who is responsible for the child’s upbringing and who can make important legal decisions concerning the child.

In an ordinary pregnancy, the woman giving birth is generally recognised as the child’s mother. However, surrogacy creates a different situation because the woman carrying the child may not be the person who intends to raise the child.

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For this reason, surrogacy law distinguishes between biological, gestational and legal parentage.

Under Indian law, a child born through a lawful surrogacy procedure is legally recognised as the child of the intending couple or intending woman. This recognition is primarily established through Section 8 of the Surrogacy (Regulation) Act, 2021.

Legal parentage affects several aspects of the child’s life, including:

• Custody and guardianship: Legal parentage determines who is responsible for the child’s care and who can exercise parental authority under the applicable law.
• Maintenance: Recognised parents are responsible for providing financial support required for the child’s upbringing and welfare.
• Inheritance: A child born through surrogacy receives the rights and privileges available to a natural child under applicable succession laws.
• Legal identity: Parentage is relevant when recording parental details in birth certificates, identity documents and other official records.
• Parental responsibilities: The recognised parents undertake responsibilities concerning the child’s education, healthcare, welfare and development.

Therefore, legal parentage in surrogacy is not simply a question of biological connection. It concerns the legal recognition of the parent-child relationship.

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Laws Governing Legal Parentage in Surrogacy in India

The principal legislation governing legal parentage in surrogacy is the Surrogacy (Regulation) Act, 2021, which came into force on 25 January 2022.

The Act regulates surrogacy arrangements, establishes eligibility requirements and protects the rights of intending parents, surrogate mothers and children born through surrogacy.

It also establishes the conditions under which surrogacy is legal in India.

Several provisions are particularly important.

Section 2: Definitions Relating to Surrogacy

Section 2 defines important expressions such as intending couple, intending woman, surrogate mother and surrogacy.

An intending couple refers to a couple satisfying the statutory definition and requirements who intend to become parents through surrogacy.

An intending woman is an Indian woman who is a widow or divorcee, between the prescribed ages, and intends to avail herself of surrogacy.

These definitions are important because the Act does not permit every individual or couple to enter into a surrogacy arrangement.

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Section 4: Conditions for Surrogacy

Section 4 establishes the conditions under which surrogacy may be undertaken.

One significant requirement concerns obtaining an order regarding the parentage and custody of the child.

The provision ensures that the legal status of the child is addressed before the surrogacy procedure proceeds.

Section 7: Prohibition on Abandonment

Section 7 prohibits the intending couple or intending woman from abandoning a child born through surrogacy on specified grounds.

This provision protects the child against rejection after birth and reinforces the responsibilities of intending parents.

Section 8: Status of a Child Born Through Surrogacy

Section 8 is the central provision governing legal parentage.

It recognises a child born through surrogacy as the biological child of the intending couple or intending woman for legal purposes.

The child is entitled to the rights and privileges available to a natural child under applicable law.

Who Is the Legal Mother of a Child Born Through Surrogacy in India?

The legal mother of a child born through a lawful surrogacy arrangement in India is the intending mother or intending woman recognised under the Surrogacy (Regulation) Act, 2021.

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The surrogate mother does not become the legal mother merely because she carries the pregnancy and gives birth.

This distinction exists because Indian law permits gestational surrogacy, under which the surrogate mother carries an embryo without contributing her own egg.

For example, where a married couple undergoes a lawful surrogacy procedure because the wife cannot carry a pregnancy due to a medical condition, another woman may act as the surrogate mother and give birth to the child.

In such a situation, the intending wife is legally recognised as the child’s mother, while the surrogate mother’s role is limited to carrying the pregnancy under the regulated arrangement.

The same principle applies where an eligible intending woman undergoes surrogacy independently.

However, legal recognition of parentage depends on compliance with the statutory framework.

Who Is the Legal Father of a Child Born Through Surrogacy?

Where surrogacy is undertaken by an eligible intending couple, the intending husband is legally recognised as the father of the child.

Section 8 treats the child born through surrogacy as the biological child of the intending couple for legal purposes.

The intending father consequently assumes parental responsibilities under applicable law.

These responsibilities include maintaining the child, participating in decisions concerning the child’s welfare and fulfilling legal obligations arising from the parent-child relationship.

The intending father’s legal status is established through the statutory framework rather than depending solely on whether he contributed genetic material.

This distinction becomes particularly relevant when donor gametes are used in circumstances permitted by law.

Difference Between Genetic, Gestational and Legal Parentage

Understanding the distinction between genetic, gestational and legal parentage is essential to understanding surrogacy law.

Genetic Parentage

Genetic parentage refers to the biological connection established through the sperm and egg used to create an embryo.

The individuals contributing the gametes have a genetic connection with the child.

However, genetic contribution does not automatically determine legal parentage in every assisted reproductive arrangement.

Gestational Parentage

Gestational parentage refers to the relationship between the child and the woman who carries the pregnancy and gives birth.

In gestational surrogacy, the surrogate mother carries the embryo but does not contribute her own egg.

Her biological role in pregnancy is therefore different from genetic motherhood.

Legal Parentage

Legal parentage refers to the parent-child relationship recognised by law.

It determines parental rights, duties and responsibilities.

Under the Surrogacy (Regulation) Act, 2021, the intending couple or intending woman is recognised as the child’s legal parent or parents.

These distinctions prevent confusion regarding the legal status of the surrogate mother and the individuals intending to raise the child.

How Is Legal Parentage Established in Surrogacy?

Legal parentage in surrogacy is established through the statutory recognition of intending parents, supported by prescribed judicial and administrative procedures.

Obtaining a Parentage and Custody Order

Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021 requires an order concerning the parentage and custody of the child to be born through surrogacy.

The order must be obtained from a court of a Magistrate of the First Class or above.

The application is made by the intending couple or intending woman and the surrogate mother.

This requirement ensures that the proposed parent-child relationship receives legal recognition within the regulated surrogacy process.

The legislation further provides that the order serves as the birth affidavit after the child is born.

Compliance With Surrogacy Requirements

The intending parents must satisfy the statutory eligibility conditions and obtain the required certificates.

Surrogacy must be undertaken through a legally permitted arrangement and a registered surrogacy clinic.

The prescribed medical, consent and procedural requirements must also be followed.

The Surrogacy (Regulation) Act, 2021 establishes several restrictions and safeguards concerning surrogacy arrangements in India.

Recognition After Birth

Once the child is born through the lawful surrogacy procedure, Section 8 governs the child’s legal status.

The child is deemed to be the biological child of the intending couple or intending woman and receives the legal rights and privileges available to a natural child.

The judicial parentage order and related records support the establishment of the child’s legal identity.

Does the Surrogate Mother Have Parental Rights Over the Child?

A surrogate mother does not acquire legal parentage merely because she gives birth to a child under a lawful gestational surrogacy arrangement.

The legal relationship between the child and the intending parents is recognised by Section 8 of the Surrogacy (Regulation) Act, 2021.

However, the absence of legal parentage does not mean that the surrogate mother has no legal rights during the surrogacy process.

The Act provides important protections concerning her consent, health and medical treatment.

Right to Informed Consent

Section 6 requires the surrogate mother’s written informed consent in the prescribed manner.

The surrogate mother must understand the relevant aspects of the proposed surrogacy procedure before consenting.

This requirement protects her autonomy in making medical and reproductive decisions.

Right to Withdraw Consent

The surrogate mother has the right to withdraw her consent before implantation of the human embryo in her womb.

This protection is important because participation in surrogacy must remain voluntary at the legally relevant stage.

The right to make decisions concerning pregnancy and medical treatment is also connected with the broader concept of reproductive rights.

Medical and Health Protections

The statutory framework contains safeguards relating to the surrogate mother’s health, medical care and insurance coverage.

These requirements recognise that pregnancy and childbirth involve medical risks and that the surrogate mother’s welfare must be protected.

Therefore, Indian surrogacy law distinguishes between the surrogate mother’s rights concerning her body and medical treatment and the legal parentage of the child born through the arrangement.

Can a Surrogate Mother Claim Custody of the Child?

Under the statutory framework for lawful gestational surrogacy, custody and parentage are intended to vest with the intending couple or intending woman.

Section 4 requires a judicial order concerning parentage and custody, while Section 8 recognises the child’s legal relationship with the intending parents.

Consequently, the surrogate mother does not acquire an ordinary parental claim to custody solely because she delivered the child.

However, unusual disputes involving the validity of an arrangement, compliance with statutory requirements or the child’s welfare may require judicial determination.

The legal position must therefore be distinguished from a general assumption that every custody dispute can be resolved merely by referring to the surrogacy agreement.

What Rights Does a Child Born Through Surrogacy Have?

A child born through surrogacy in India is entitled to the rights and privileges available to a natural child under applicable law.

Section 8 is particularly important because it prevents the child’s legal status from being disadvantaged merely because the birth occurred through surrogacy.

Right to Legal Recognition

The child is recognised as the child of the intending couple or intending woman.

This recognition establishes the legal parent-child relationship and provides the foundation for other rights.

Right to Maintenance and Care

The intending parents assume responsibilities concerning the child’s maintenance and welfare.

These responsibilities may include financial support, healthcare, education and other necessities associated with raising a child.

Under applicable personal laws, the concept of maintenance includes obligations relating to the financial support and basic needs of children.

Right to Inheritance

A child born through surrogacy receives the rights and privileges of a natural child under applicable succession laws.

The child’s entitlement to inherit therefore depends on the relevant personal or succession law, just as it would for another legally recognised child.

For example, where Hindu succession law applies, inheritance rights are governed by the Hindu Succession Act, 1956.

Surrogacy itself does not create a separate or inferior category of inheritance rights.

Right Against Abandonment

Section 7 prohibits intending parents from abandoning a child born through surrogacy on specified grounds, including:

• Disability or genetic defects: The intending parents cannot reject the child merely because the child is born with a disability or genetic condition.
• Medical conditions: A child’s medical condition cannot be used as a ground for abandonment under the provision.
• Sex of the child: The intending parents cannot refuse responsibility because the child is male or female.
• Multiple births: The birth of twins or other multiple children does not permit abandonment under the statutory prohibition.

These safeguards establish that intending parents cannot avoid their responsibilities simply because the child does not meet their expectations.

Does Using Donor Sperm or Eggs Affect Legal Parentage?

The use of donor sperm or eggs does not automatically transfer legal parentage from the intending parents to the gamete donor.

However, donor gametes may be used in surrogacy only within the conditions permitted by law.

The Surrogacy (Regulation) Amendment Rules, 2024 introduced provisions allowing donor gametes in specified medical circumstances.

Where the District Medical Board certifies that either spouse has a medical condition necessitating the use of a donor gamete, the use of a donor gamete may be permitted.

In such cases, the child must have at least one gamete from the intending couple.

For an eligible intending woman, the amended rules ordinarily require the use of her own egg and donor sperm.

The legal importance of these provisions is that genetic connection and legal parentage are not necessarily identical.

For example, if an eligible intending couple lawfully uses a donor egg because of a certified medical condition, the intending wife may still be legally recognised as the child’s mother.

Section 8 continues to determine the child’s legal status.

Nevertheless, the statutory conditions governing donor gametes must be satisfied. Recognition of legal parentage does not independently authorise an otherwise prohibited surrogacy arrangement.

Can Intending Parents Refuse to Accept a Child Born Through Surrogacy?

No. Intending parents cannot abandon a child born through surrogacy on the grounds prohibited by Section 7 of the Surrogacy (Regulation) Act, 2021.

The provision specifically addresses circumstances where parents may attempt to reject a child because of disability, genetic defects, medical conditions, sex or multiple births.

For example, if twins are born through a lawful surrogacy arrangement, the intending parents cannot abandon one child merely because they originally expected a single child.

Similarly, the birth of a child with a medical condition does not release the intending parents from their statutory responsibilities.

This prohibition is closely connected with legal parentage because the purpose of recognising intending parents is not limited to granting parental rights. It also establishes legal obligations towards the child.

How Is the Birth Certificate Issued for a Child Born Through Surrogacy?

Birth registration is an important part of establishing the legal identity of a child born through surrogacy.

Under Section 4(iii)(a)(II), the judicial order concerning parentage and custody serves as the birth affidavit after the child is born.

The birth must also be registered in accordance with the applicable civil registration framework.

The parental details recorded in the birth certificate should reflect the legally recognised parentage of the child.

However, the parentage order and registration of birth are distinct legal requirements. Obtaining a parentage order does not necessarily complete every administrative requirement for issuing a birth certificate.

Incorrect recording of parental details can create practical difficulties concerning identity documents, schooling, inheritance and other legal matters.

Where a birth certificate incorrectly records the surrogate mother instead of the legally recognised intending mother, correction may require proceedings before the competent authority or court, depending on the circumstances.

The Madras High Court considered an issue involving correction of parental particulars in Amaravathi v Pavithra J (2025). The dispute illustrates the importance of ensuring consistency between legal parentage and civil birth records.

Important Court Decisions on Legal Parentage in Surrogacy

Indian courts have considered legal parentage in surrogacy while examining statutory requirements, parentage orders and custody arrangements.

X v State of Tamil Nadu (2025)

In X v State of Tamil Nadu (2025), the Madras High Court considered issues concerning recognition of intending parents under the surrogacy framework.

The Court recognised the intending couple as the lawful parents of the children to be born through surrogacy and addressed the legal effect of the parentage order.

The decision is relevant because it demonstrates the role of judicial orders in implementing the statutory recognition of intending parents.

It also highlights that parentage orders are an important part of the legal process established under the Surrogacy (Regulation) Act, 2021.

S. Vijay Krishnan v State of Tamil Nadu (2026)

In S. Vijay Krishnan v State of Tamil Nadu, decided on 5 August 2026, the Madras High Court considered a dispute involving an order concerning parentage and custody under the surrogacy legislation.

The Court set aside the Magistrate’s order under challenge and recognised the intending couple as the lawful parents of the child to be born through surrogacy.

It also directed that custody would vest with the intending parents immediately upon birth.

The decision illustrates the judicial application of the statutory framework governing the legal relationship between intending parents and children born through surrogacy.

What Happens If a Surrogacy Agreement Conflicts With the Law?

A surrogacy agreement cannot override mandatory provisions of the Surrogacy (Regulation) Act, 2021.

Private arrangements must comply with statutory eligibility requirements, restrictions on commercial surrogacy, consent requirements and prescribed procedures.

Therefore, an agreement cannot independently create a lawful surrogacy arrangement where the essential statutory conditions are not satisfied.

Similarly, an agreement cannot remove legal protections granted to the surrogate mother or child.

For instance, contractual terms cannot lawfully eliminate the surrogate mother’s statutory right to withdraw consent before embryo implantation.

Likewise, an agreement cannot authorise intending parents to abandon a child on grounds prohibited by Section 7.

Where disputes arise, the legal effect of the arrangement must be examined under the governing legislation and applicable judicial principles.

Legal Parentage in Surrogacy Compared With Adoption

Surrogacy and adoption are different legal processes, although both may result in individuals becoming legally recognised parents.

In surrogacy, legal parentage is determined under the Surrogacy (Regulation) Act, 2021.

In adoption, the parent-child relationship is established through applicable adoption law and prescribed legal procedures.

The distinction is important because the procedures for establishing parentage are different.

A child born through a lawful surrogacy arrangement is not ordinarily required to undergo a separate adoption process merely to establish parentage in favour of the intending couple or intending woman.

What Happens to Legal Parentage If the Intending Parents Separate?

Separation or divorce between intending parents may raise questions concerning custody, maintenance and parental responsibilities.

However, marital separation does not automatically eliminate a legally established parent-child relationship.

Where the intending couple has been recognised as the child’s parents, subsequent disputes concerning custody and maintenance must be resolved under the applicable legal framework.

The welfare of the child remains an important consideration in custody proceedings.

The Surrogacy (Regulation) Act, 2021 does not provide a complete, separate system for resolving every family dispute that may arise after a child’s birth.

Accordingly, relevant family law and judicial procedures may become applicable depending on the nature of the dispute.

Why Is Legal Parentage Important in Surrogacy?

Legal parentage is necessary to ensure certainty regarding the rights and responsibilities of everyone involved in a surrogacy arrangement.

Without clear legal recognition, disputes could arise concerning who has authority to make decisions for the child, who must provide maintenance and whose name should appear in official records.

The statutory framework serves several purposes:

• Protecting the child’s legal identity: Recognition of intending parents helps establish the child’s family status and supports the preparation of accurate legal documents.
• Clarifying parental responsibilities: The law identifies the individuals responsible for the child’s care, maintenance and welfare.
• Protecting the surrogate mother: Clear parentage rules distinguish the surrogate mother’s gestational role from the legal responsibilities of intending parents.
• Preventing abandonment: The statutory prohibition on abandonment ensures that intending parents cannot reject the child on specified grounds.
• Reducing legal uncertainty: Judicial orders and statutory recognition provide a legal basis for resolving questions concerning parentage and custody.

These protections are particularly important because surrogacy involves reproductive, medical and family relationships that differ from conventional childbirth.

Conclusion

Legal parentage in surrogacy in India is primarily governed by the Surrogacy (Regulation) Act, 2021. Section 8 recognises a child born through surrogacy as the biological child of the intending couple or intending woman for legal purposes and grants the child the rights and privileges available to a natural child.

The surrogate mother does not become the legal mother merely because she carries and delivers the child. Her role and legal protections are distinct from the parental rights and responsibilities of the intending parents.

The requirement of a judicial order concerning parentage and custody, the prohibition on abandonment and the recognition of children’s rights collectively establish a framework for protecting the legal interests of those involved in surrogacy.

The distinction between genetic, gestational and legal parentage remains central to understanding the subject. Indian law recognises that the individuals who contribute genetic material, carry the pregnancy and assume legal responsibility for the child may not always be the same.

Ultimately, the legal framework seeks to establish certainty of parentage while protecting the rights, welfare and legal identity of children born through surrogacy.