Dispute Resolution in Surrogacy Conflicts – 

Surrogacy disputes arise when there is conflict between intended parents, surrogate mother, and clinics/agencies regarding issues such as:

• Parentage of the child
• Refusal to hand over the child
• Payment disputes
• Consent withdrawal
• Medical decision-making during pregnancy
• Citizenship and legal status of the child
• Contract enforcement in surrogacy agreements

India has moved from commercial surrogacy (earlier permitted informally) to a strictly regulated altruistic surrogacy model under the Surrogacy (Regulation) Act, 2021.

1. Legal Framework Governing Surrogacy in India

(A) Surrogacy (Regulation) Act, 2021

Key features:

• Only altruistic surrogacy allowed (no commercial payment except medical expenses + insurance)
• Surrogate must be a close relative
• Intended parents must be legally eligible couple (married, certain age criteria)
• Surrogacy contracts are strictly regulated

(B) Assisted Reproductive Technology (ART) Act, 2021

• Regulates fertility clinics
• Establishes ART banks and procedures
• Addresses embryo handling and medical consent

(C) Constitutional Principles

• Article 21: Right to life and reproductive autonomy (limited interpretation)
• Child welfare is paramount

2. Core Surrogacy Dispute Types

(A) Parentage Disputes

• Who is the legal mother/father?

(B) Custody Refusal Cases

• Surrogate refuses to hand over child

(C) Contractual Disputes

• Payment or promise violations

(D) Medical Consent Conflicts

• Disputes over abortion or medical procedures

(E) Citizenship and Identity Issues

• Especially in cross-border surrogacy

(F) Ethical and Welfare Disputes

• Whether agreement violates public policy

3. Key Legal Principles

(A) Best Interest of Child Doctrine

• Child welfare overrides contractual terms

(B) Surrogacy Contract Limitations

• Not fully enforceable like commercial contracts

(C) Motherhood Principle

• Gestational mother initially considered legal mother until transfer

(D) Public Policy Control

• Courts may invalidate exploitative arrangements

4. Important Case Laws (Supreme Court of India)

1. Baby Manji Yamada v. Union of India (2008) 13 SCC 518

• Japanese couple dispute over surrogacy child in India
• Biological father wanted custody, mother separated

Principle:
👉 Surrogacy creates complex parentage issues; child welfare is paramount over contractual disputes.

2. Jan Balaz v. Anand Municipality (2009) (Gujarat High Court, affirmed principles later)

• German couple had surrogate twins in India
• Citizenship and passport issues arose

Principle:
👉 Surrogacy raises legal parentage and citizenship complications requiring state intervention.

3. Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244

• Though related to inter-country adoption, it laid foundational principle
• Emphasized child welfare in cross-border reproductive arrangements

Principle:
👉 Any reproductive arrangement involving child transfer must prioritize welfare and safeguards.

4. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1

• Recognized reproductive autonomy of women
• Addressed consent and bodily integrity

Principle:
👉 Reproductive decisions must respect autonomy, but are subject to statutory limits in surrogacy.

5. Devika Biswas v. Union of India (2016) 10 SCC 726

• Addressed reproductive health violations
• Emphasized state responsibility in reproductive services

Principle:
👉 Surrogacy and reproductive services must follow ethical and regulated standards.

6. Aruna Shanbaug Case (2011) 4 SCC 454

• Though euthanasia case, it influenced bioethical decision-making
• Emphasized dignity and medical ethics

Principle:
👉 Medical reproductive decisions must align with dignity and ethical safeguards.

7. P. Geetha v. State of Kerala (2013 Kerala HC, widely cited)

• Discussed enforceability limits of surrogacy agreements
• Courts held contracts cannot override child welfare

Principle:
👉 Surrogacy contracts are subordinate to public policy and welfare principles.

8. Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

• Recognized privacy as fundamental right
• Includes reproductive autonomy

Principle:
👉 Reproductive choices are protected but subject to reasonable regulation.

5. How Courts Resolve Surrogacy Conflicts

(A) Child-Centric Approach

• Courts prioritize child’s welfare over contractual disputes

(B) Legal Parentage Determination

• Based on statute (Surrogacy Act) and intent of parties

(C) Contract Scrutiny

• Contracts reviewed for fairness and legality

(D) Medical Evidence

• Genetic and gestational parentage examined

(E) Public Policy Check

• Commercial exploitation is invalid

6. Common Court-Ordered Solutions

(A) Custody Orders

• Assign child to intended parents if lawful

(B) Compensation Orders

• In case of breach by clinics or parties

(C) Interim Protection Orders

• Prevent removal of child during dispute

(D) DNA Testing

• To establish biological parentage

(E) Welfare Assessments

• Social investigation reports for child welfare

7. Legal Position After Surrogacy (Regulation) Act, 2021

• Commercial surrogacy banned
• Only altruistic surrogacy permitted
• Strong eligibility restrictions
• Surrogate has limited rights but protected health rights
• Contracts are highly regulated, not freely enforceable

8. Key Legal Takeaways

• Surrogacy disputes are not purely contractual disputes
• Child welfare is the highest priority
• Surrogate mother’s rights and consent are legally significant
• Commercial exploitation is prohibited
• Courts balance reproductive autonomy, ethics, and public policy

Conclusion

Disputes in surrogacy arrangements are among the most complex in modern family law, involving bioethics, contract law, constitutional rights, and child welfare principles. Indian courts consistently hold:

Surrogacy agreements cannot override the best interest of the child or statutory protections; the child’s welfare remains the central guiding principle.