Surrogacy and Adoption Laws: Key Issues

Explainer:

Surrogacy and adoption are two distinct legal mechanisms through which parenthood is established in India. While adoption provides a home to a child who is biologically unrelated to the adoptive parents, surrogacy enables intending parents to have a child through assisted reproductive techniques. With the enactment of the The Surrogacy (Regulation) Act, 2021, India has created a structured legal framework to regulate surrogacy and protect the rights of surrogate mothers, intending parents, and children born through the process.

At the same time, the Hindu Adoption and Maintenance Act, 1956 governs the legal process of adoption among Hindus, defining who can adopt, who can be adopted, and the legal consequences of adoption.

A grass roots level question arises at the intersection of these two frameworks: Can a child born through surrogacy be subjected to adoption proceedings? This issue becomes significant because surrogacy establishes legal parentage through statutory recognition and court orders, whereas adoption involves the permanent transfer of parental rights from biological parents to adoptive parents.

This article examines the statutory provisions governing surrogacy and adoption in India, analyses the legal status of a child born through surrogacy, and argues that such a child is not legally subject to adoption, as parentage is already conclusively determined under the Surrogacy Act.

THE SURROGACY (REGULATION) ACT, 2021

The Surrogacy (Regulation) Act, 2021, was introduced in India to regulate surrogacy practices and ensure ethical standards. The law aims to protect the rights of surrogate mothers, intended parents, and children born through surrogacy. Surrogacy, as defined by the act, involves a woman (the surrogate) carrying and giving birth to a child for an intending couple, with the agreement that the child will be handed over after birth. The intended parents are legally recognized as the child's parents, and there is no ongoing relationship between the surrogate and the child.

The act permits only altruistic surrogacy (where no payment is involved except for medical expenses) and bans commercial surrogacy. Surrogacy can only occur in registered clinics overseen by national or state surrogacy boards. It also prohibits practices such as sex selection, abortion (except under medical circumstances), and the abandonment of surrogate-born children.

Qualification Requirements for Intended Parent:

The Surrogacy (Regulation) Act, 2021, outlines eligibility criteria for intended couples. They must be legally married, with the woman aged 23-50 years and the man aged 26-55 years. Both must be medically and psychologically fit for surrogacy and provide medical proof of infertility or inability to conceive naturally. The couple should not have a surviving biological, adopted, or surrogate child. Additionally, only Indian citizens are eligible under Section 4 of the Act.

Eligibility of surrogacy mother:

The Surrogacy (Regulation) Act, 2021, specifies that a surrogate mother must be between 25 and 35 years old, married, and have at least one biological child. She must be in good physical health, with a healthy BMI (body mass index), free of infectious diseases, and without serious health conditions that could complicate pregnancy. The surrogate should have successfully carried and delivered at least one full-term pregnancy. She must not use alcohol, tobacco, or drugs, and have no criminal background. Additionally, she must be medically and psychologically fit, with an uncomplicated reproductive history to reduce risks during pregnancy. A surrogate can only serve once, to prevent commercial surrogacy, and must have family and financial support. These criteria are outlined in Section 4 of the Act. In this act the act only the altruistic surrogacy process.

Child through the surrogate mother:

Under Section 4(iii) (a) (II) read with Section 8 of the Surrogacy (Regulation) Act, 2021, the intending couple is legally recognised as the biological parents of the child born through surrogacy. A court order regarding parentage and custody is mandatory before the procedure, ensuring that the birth certificate is issued in the name of the intending parents.

Section 8 of the Act states that a child born through surrogacy is deemed the biological child of the intended parents and is entitled to all rights and privileges of a natural-born child. Section 7 prohibits abandoning a child born through surrogacy for any reason, including genetic or birth defects, medical conditions, or the child’ s gender or appearance. Violations can lead to imprisonment of up to 10 years and a fine of up to 10 lakh rupees.

The Hindu Adoption and Maintenance Act (HAMA),1956

The Hindu Adoption and Maintenance Act (HAMA) of 1956 governs the legal process of adoption and maintenance rights among Hindus, including Buddhists, Jains, and Sikhs. The Act outlines the procedures for adoption, eligibility criteria for both adoptive parents and children, and the legal transfer of parental rights. Under HAMA, adoption is the irrevocable transfer of a child from the biological parents to the adoptive parents, creating a new legal parent-child relationship. The primary goal of adoption is to provide a secure and nurturing home for a child, ensuring their welfare, security, and rights.

Who can adopt the child?

A Hindu married couple can adopt with mutual consent. A single Hindu male can adopt only a male child if he is at least 21 years older, while a single Hindu female, aged 21 or older, can adopt any child, provided she is 21 years older than the child. All parties must be Hindus, mentally sound, and for married couples, both partners must agree to the adoption.

Who can be adopted?

A Hindu Child as the Act applies specifically to Hindus. The child can be either male or female. The child must be an unmarried minor and the child must be under 18 years of age. The child should not have been adopted by another person or family. The Act allows for the adoption of a child who has not already been legally adopted.

Who can give adoption?

Under the Hindu Adoption and Maintenance Act (HAMA) of 1956, a child can be given up for adoption by their biological parents or legal guardian. If both biological parents are alive, their joint consent is required. If one parent is deceased, the surviving parent's consent is sufficient. In cases where a parent has sole custody of the child, that parent alone can give the child up for adoption.

Surrogate-born children should not be put up for adoption:

Parents often choose adoption due to an inability to meet a child's basic needs such as food, education, shelter, and healthcare. Other reasons include unplanned or teenage pregnancies, health issues, and a desire for a better life for the child, personal circumstances, and legal or custody challenges.

Intended couples turn to surrogacy when they are childless or face infertility issues, medical conditions that prevent them from carrying a pregnancy, or health risks that make pregnancy dangerous. Surrogacy offers a way to have a biological child and is typically cost-effective, conducted at authorized surrogacy centres.

Children born through surrogacy are not eligible for adoption because the legal rights are transferred from the surrogate mother to the intended parents at birth. The surrogate is legally recognized as the mother only until birth, after which the intended parents are considered the legal parents from the moment of birth. Adoption is unnecessary for surrogacy-born children because their legal parentage is established through a court order. Since parental rights are only meant to be transferred once, children born via surrogacy are not subject to adoption. Repeatedly transferring parental rights would violate adoption laws. There should be an exception in surrogacy laws to clarify that these children are treated as the biological offspring of the intended parents.

Conclusion:

Surrogacy and adoption operate within distinct legal frameworks in India, each serving different social and legal purposes. Adoption, governed by the Hindu Adoption and Maintenance Act, 1956, facilitates the permanent transfer of parental rights to provide a home for a child in need of care and protection. Surrogacy, on the other hand, is regulated by The Surrogacy (Regulation) Act, 2021, which establishes a statutory mechanism for intending parents to have a child through assisted reproductive techniques under strict regulatory conditions.

Under the Surrogacy Act, the child born through surrogacy is deemed to be the biological child of the intending parents, with full legal rights and privileges equivalent to those of a natural-born child. Parentage and custody are determined through a pre-procedure court order, leaving no legal vacuum that would require adoption. Since adoption under HAMA results in a complete and irrevocable transfer of parental status, applying adoption principles to a surrogate-born child would be legally unnecessary and conceptually inconsistent with the statutory scheme.

Therefore, a child born through lawful surrogacy is not subject to adoption, as legal parentage is conclusively established at birth. The existing framework ensures clarity of status, protection of rights, and stability of family relationships. Any further legislative clarification, if introduced, would merely reinforce what is already implicit in the statutory design that surrogacy creates legal parenthood from inception, eliminating the need for adoption proceedings.