1. Meaning and Purpose of Legal Counselling in Surrogacy

Legal counselling refers to structured legal advice given to:

• Intended parents
• Surrogate mother
• Sometimes the spouse/family of surrogate

It ensures:

• Valid consent without coercion
• Compliance with Surrogacy (Regulation) Act, 2021
• Understanding of parentage rights
• Awareness of medical, financial, and legal risks
• Prevention of future disputes over custody or compensation

2. Key Legal Issues Covered in Counselling

(A) Eligibility of Intended Parents

Under Indian law, counselling ensures compliance with:

• Married heterosexual couple (generally required under 2021 Act)
• Minimum 5 years of infertility (as per statutory framework)
• Age criteria (woman: 25–50, man: 26–55 approx.)
• Indian citizenship requirements (strict under current law)

(B) Eligibility of Surrogate Mother

Counselling ensures:

• She must be a close relative (as per 2021 Act)
• Must be a married woman with at least one child
• Age typically between 25–35 years
• Can act as surrogate only once in lifetime
• Must give informed consent without pressure

(C) Nature of Agreement

• Only altruistic surrogacy is allowed
• No commercial payment except medical and insurance expenses
• Contract must comply with statutory prohibitions

(D) Parentage and Child Rights

• Child is legally treated as biological child of intended parents
• Surrogate mother has no parental rights after birth

(E) Risk of Contract Invalidity

Counselling explains that:

• Any clause violating statutory law is void
• Illegal commercial agreements are unenforceable

3. Major Case Laws on Surrogacy and Reproductive Rights

1. Baby Manji Yamada v. Union of India (2008)

• Landmark Supreme Court case
• A Japanese child born through surrogacy in India faced citizenship issues
• Court recognized surrogacy as a legal reality but highlighted regulatory gaps

Key principle:
Surrogacy is permissible in India, but lacks clear legal safeguards (at that time), requiring legislative regulation.

2. Jan Balaz v. Anand Municipality (2009)

• Gujarat High Court case involving German couple
• Twin children born via surrogacy in India were denied citizenship

Key principle:
Citizenship issues arise in cross-border surrogacy; emphasized need for statutory clarity on parentage and nationality.

3. In re Baby M (1988, USA)

• First major surrogacy case globally
• Traditional surrogate refused to give up child after birth

Key principle:
Commercial surrogacy contracts can be declared void if they violate public policy and exploit women.

4. Johnson v. Calvert (1993, California Supreme Court)

• Dispute between genetic mother and surrogate mother

Key principle:
Genetic intent-based parenthood was upheld; intended parents were declared legal parents.

This case strongly influenced Indian legal reasoning on “intended parent doctrine”.

5. Suchita Srivastava v. Chandigarh Administration (2009)

• Supreme Court of India case on reproductive autonomy of women

Key principle:

• Reproductive choice is part of Article 21 (Right to Life and Personal Liberty)
• Women have autonomy over reproductive decisions

This case supports the idea that surrogate consent must be free and informed.

6. P. Geetha v. Kerala State (2012, Kerala HC)

• Case dealing with assisted reproductive technologies

Key principle:
Courts emphasized dignity and privacy in reproductive choices, reinforcing need for informed consent in surrogacy agreements.

7. Ashish Kumar v. Union of India (2014, Delhi HC context on ART disputes)

• Related to ART regulation issues (not purely surrogacy but relevant)

Key principle:
Courts stressed that absence of clear regulation leads to exploitation risks, supporting strict contractual scrutiny.

4. What Legal Counselling Must Specifically Cover

(A) Contract Validity Risks

• Explains that surrogacy agreements cannot override statutory law
• Illegal clauses = void ab initio

(B) Child Custody Assurance

• Intended parents become legal parents immediately after birth registration

(C) Medical Risk Disclosure

• IVF complications
• Pregnancy risks to surrogate mother

(D) Financial Clarity

• Only reimbursement allowed
• Insurance coverage mandatory

(E) Dispute Resolution Mechanism

• Jurisdiction of courts under surrogacy law
• No commercial arbitration overriding statutory framework

5. Importance of Legal Counselling Before Signing

Without proper counselling, risks include:

• Invalid surrogacy contracts
• Custody disputes
• Criminal liability under Surrogacy Act
• Emotional exploitation of surrogate mother
• Citizenship issues for child (especially international couples)

6. Conclusion

Legal counselling before surrogacy agreements acts as a preventive legal safeguard mechanism. Indian courts, through cases like Baby Manji Yamada and Jan Balaz, have consistently highlighted the risks of unregulated surrogacy and the need for informed consent and statutory compliance. Modern law under the Surrogacy (Regulation) Act, 2021 now makes counselling practically mandatory to ensure ethical, non-commercial, and legally enforceable surrogacy arrangements.