I. Key Legal Issues in Gestational Surrogacy Disputes

1. Determination of Legal Motherhood

The central dispute is:
Is the mother the genetic contributor or the woman who gives birth?

Courts in different jurisdictions have answered differently, leading to conflicting precedents.

2. Enforceability of Surrogacy Agreements

Questions arise such as:

• Are surrogacy contracts valid or against public policy?
• Can a surrogate legally “sell” parental rights?

Some jurisdictions enforce contracts strictly, while others treat them as unenforceable.

3. Rights of Intended Parents vs Surrogate Mother

Conflicts arise when:

• Surrogate refuses to hand over the child
• Intended parents abandon the child (often due to disability or divorce)

4. Citizenship and Cross-Border Surrogacy

In international surrogacy:

• Child may become stateless
• Countries may refuse to recognize parentage

5. Compensation vs Altruistic Surrogacy

Many legal systems distinguish:

• Commercial surrogacy (payment allowed)
• Altruistic surrogacy (only medical expenses reimbursed)

India now restricts surrogacy largely to altruistic arrangements under the Surrogacy (Regulation) Act, 2021.

6. Welfare of the Child (Paramount Consideration)

Courts increasingly prioritize:

“Best interest of the child” over contractual rights of adults.

II. Important Case Laws on Gestational Surrogacy Disputes

1. Baby M Case (USA, New Jersey Supreme Court, 1988)

Issue: Validity of traditional surrogacy contract.

Held:

• Surrogacy contract was invalid as it resembled “baby selling”
• Surrogate mother retained maternal rights (as genetic mother in traditional surrogacy)
• However, custody awarded to intended father based on child welfare

Significance:

• Established early skepticism toward enforceability of surrogacy contracts.

2. Johnson v. Calvert (USA, California Supreme Court, 1993)

Issue: Conflict between genetic mother and gestational surrogate.

Held:

• Intended mother (genetic contributor) recognized as legal mother
• Court introduced “intent-based parenthood doctrine”

Significance:

• Landmark case for gestational surrogacy
• Established that intent + genetic link outweighs gestation

3. In re Marriage of Buzzanca (USA, California Court of Appeal, 1998)

Issue: Child born via donor egg, donor sperm, and surrogate—no genetic link to intended parents.

Held:

• Intended parents are legal parents because they initiated the reproductive process

Significance:

• Expanded “intent doctrine” even without genetic connection.

4. Baby Manji Yamada v. Union of India (India, Supreme Court, 2008)

Issue: Statelessness of a child born through Indian surrogacy to Japanese parents who divorced before birth.

Held:

• Recognized the child’s right to travel and identity
• Allowed issuance of travel documents for child’s welfare

Significance:

• Highlighted legal vacuum in Indian surrogacy law at the time
• Emphasized child welfare over procedural gaps

5. Jan Balaz v. Anand Municipality (Gujarat High Court, India, 2009)

Issue: Citizenship of twins born via surrogacy to German parents.

Held:

• India initially refused citizenship
• Court directed resolution for stateless children

Significance:

• Exposed cross-border surrogacy legal conflicts
• Influenced stricter regulation in India later

6. Mennesson v. France (European Court of Human Rights, 2014)

Issue: France refused to recognize children born through surrogacy abroad.

Held:

• France violated children’s right to identity and private life

Significance:

• Strengthened recognition of surrogate-born children’s legal identity in Europe

7. Paradiso and Campanelli v. Italy (ECHR, 2017)

Issue: Italy removed a child born via surrogacy abroad from intended parents.

Held:

• No violation of human rights as no biological connection existed

Significance:

• Showed limits of surrogacy recognition when no genetic link exists

8. Suchita Srivastava v. Chandigarh Administration (India, Supreme Court, 2009)

Issue: Reproductive autonomy of a mentally challenged woman.

Held:

• Reproductive choice is part of personal liberty under Article 21

Significance:

• Though not a surrogacy case, it laid foundation for reproductive autonomy arguments used in surrogacy disputes.

III. Emerging Legal Principles from These Cases

Across jurisdictions, certain principles have emerged:

1. Intent-Based Parenthood

Recognized strongly in U.S. jurisprudence:

• Johnson v. Calvert
• Buzzanca case

2. Genetic Connection Principle

Still relevant in some jurisdictions:

• Often prioritizes biological link over gestation

3. Best Interest of Child Doctrine

Applied universally:

• Baby M case
• Baby Manji case
• ECHR rulings

4. State Regulation Over Private Contracts

Increasing global trend:

• Surrogacy is not purely contractual anymore
• Strong regulatory frameworks now dominate (e.g., India’s 2021 law)

IV. Conclusion

Gestational surrogacy disputes arise because the law is forced to answer a deeply modern question:

“Is parenthood created by biology, birth, intention, or law?”

Courts worldwide have shifted from biological determinism → intention-based parenthood → child welfare centric approach, while governments increasingly regulate surrogacy to prevent exploitation and cross-border legal chaos.