Parentage Disputes in Surrogacy Arrangements

Parentage disputes in surrogacy arrangements arise when there is uncertainty or conflict regarding who should be legally recognized as the child’s parents. Surrogacy has transformed traditional concepts of motherhood and fatherhood because reproduction may involve multiple participants: the intending parents, the surrogate mother, sperm donors, egg donors, and medical institutions. Courts across jurisdictions have struggled to reconcile biological, genetic, gestational, and intentional theories of parenthood.

Surrogacy disputes generally emerge in the following situations:

1. The surrogate refuses to relinquish the child.
2. Intended parents refuse to accept the child.
3. Divorce or death of intended parents before birth.
4. Cross-border surrogacy creating nationality and citizenship conflicts.
5. Disputes involving same-sex couples.
6. Conflicts between genetic parenthood and gestational motherhood.

The central legal question is: Who is the legal parent of a child born through surrogacy?

Courts worldwide have adopted different approaches:

• Genetic theory – parentage belongs to those contributing genetic material.
• Gestational theory – the woman who gives birth is the legal mother.
• Intentional theory – those intending to raise the child are the legal parents.
• Best interests of the child – child welfare overrides contractual claims.

Types of Surrogacy and Their Impact on Parentage

1. Traditional Surrogacy

The surrogate uses her own egg and is artificially inseminated. She is both the gestational and genetic mother.

This creates stronger legal claims for the surrogate because she shares a biological connection with the child.

2. Gestational Surrogacy

The surrogate carries an embryo created from the gametes of the intended parents or donors. The surrogate has no genetic connection.

Courts are more likely to recognize intended parents in gestational surrogacy.

Legal Issues in Parentage Disputes

A. Enforceability of Surrogacy Contracts

Some jurisdictions treat surrogacy agreements as valid contracts; others consider them contrary to public policy.

B. Maternal Identity

Is the mother:

• the woman who gives birth,
• the genetic mother,
• or the intending mother?

C. Constitutional Rights

Surrogates sometimes claim reproductive autonomy and parental rights.

D. Child Welfare

Courts prioritize emotional stability, identity, and welfare of the child.

E. Citizenship and Nationality

International surrogacy often leaves children stateless or without recognized parents.

Important Case Laws

1. Baby M Case – In re Baby M

Facts

William Stern and Elizabeth Stern entered into a traditional surrogacy agreement with Mary Beth Whitehead. Whitehead was inseminated with Stern’s sperm and agreed to surrender the child after birth. After delivery, she refused to relinquish the child.

Issues

• Was the surrogacy contract enforceable?
• Who was the legal mother?

Judgment

The New Jersey Supreme Court declared the surrogacy contract invalid as against public policy. However, custody was granted to the biological father, William Stern, while Whitehead retained visitation rights.

Significance

• First major surrogacy parentage dispute.
• Distinguished custody from contractual enforcement.
• Recognized that children cannot be treated as commodities.
• Influenced anti-commercial surrogacy laws globally.

2. Johnson v. Calvert

Facts

Mark and Crispina Calvert provided the genetic material for an embryo implanted into Anna Johnson, a gestational surrogate. Johnson later claimed parental rights.

Issues

• Who was the legal mother: genetic mother or gestational carrier?
• Was the surrogacy agreement valid?

Judgment

The California Supreme Court held that the intended genetic parents were the legal parents because they intended to bring about the birth and raise the child.

Principle Established

The court adopted the “intent-based theory” of parentage.

Significance

• Landmark recognition of intended parenthood.
• Distinguished gestational surrogacy from traditional surrogacy.
• Became the foundation of modern surrogacy jurisprudence in the United States.

3. Jan Balaz v. Anand Municipality

Facts

A German couple commissioned surrogacy in India. Twin children were born through an Indian surrogate. Germany refused citizenship because surrogacy was not recognized there, while Indian authorities also denied passports.

Issues

• Nationality and parentage of surrogate-born children.
• Recognition of intended parents in cross-border surrogacy.

Judgment

The Supreme Court of India allowed travel documents for the children and acknowledged complexities of international surrogacy arrangements.

Significance

• Highlighted statelessness risks in international surrogacy.
• Exposed gaps in Indian surrogacy regulation.
• Contributed to later restrictive surrogacy legislation in India.

4. Mennesson v. France

Facts

A French couple used gestational surrogacy in the United States. France refused to recognize the parent-child relationship because surrogacy was prohibited domestically.

Issues

• Whether refusal to recognize parentage violated children’s rights.

Judgment

The European Court of Human Rights held that refusal to legally recognize the relationship violated the children’s right to private life under Article 8 of the European Convention on Human Rights.

Significance

• Shifted focus from morality of surrogacy to child welfare.
• Emphasized identity rights of surrogate-born children.
• Pressured European states to recognize foreign surrogacy outcomes.

5. Paradiso and Campanelli v. Italy

Facts

An Italian couple obtained a child through surrogacy in Russia, but neither intended parent had a genetic connection to the child. Italian authorities removed the child.

Issues

• Whether intended parents without biological ties could claim family life protection.

Judgment

The Grand Chamber ruled in favor of Italy, holding that no protected family life existed due to the absence of biological ties and the short duration of the relationship.

Significance

• Demonstrated limits of intended parenthood claims.
• Reinforced state discretion in regulating surrogacy.
• Distinguished biological from social parenthood.

6. Re X and Y (Foreign Surrogacy)

Facts

A British couple entered into a commercial surrogacy arrangement in Ukraine. They sought legal recognition as parents in the United Kingdom.

Issues

• Whether British courts could recognize parentage despite commercial surrogacy abroad.

Judgment

The court granted a parental order in favor of the intended parents, prioritizing the welfare of the children.

Significance

• Demonstrated pragmatic judicial treatment of international surrogacy.
• Confirmed that child welfare prevails over technical illegality.
• Encouraged reforms in parental order procedures.

7. Buzzanca v. Buzzanca

Facts

A married couple arranged gestational surrogacy using donor sperm and donor egg. Before birth, the couple divorced and the husband denied parentage because he lacked genetic connection.

Issues

• Whether intending parents without genetic ties are legal parents.

Judgment

The court held that the husband was the legal father because he initiated and consented to the reproductive arrangement.

Significance

• Expanded the intent-based theory.
• Recognized social and intentional parenthood over biology.
• Important precedent for donor-assisted reproduction.

Theories Used by Courts in Parentage Determination

Parentage Disputes in India

India initially became a global hub for commercial surrogacy due to low costs and liberal policies. However, concerns emerged regarding:

• exploitation of surrogate mothers,
• abandonment of children,
• citizenship disputes,
• trafficking risks,
• lack of legal clarity.

The current Indian framework under the Surrogacy (Regulation) Act restricts commercial surrogacy and permits only altruistic surrogacy under strict conditions.

Under Indian law:

• intending couples are generally recognized as legal parents,
• the surrogate has limited parental claims,
• parentage is established through legal authorization and medical procedures.

However, disputes continue regarding:

• failed surrogacy arrangements,
• foreign commissioning parents,
• custody after divorce,
• donor anonymity.

Comparative International Position

United States

Different states adopt different rules:

• California strongly supports intended parenthood.
• Some states prohibit commercial surrogacy.

United Kingdom

The surrogate remains the legal mother until a parental order transfers parentage.

France and Germany

Historically hostile to surrogacy, though courts increasingly recognize children’s rights.

India

Allows only regulated altruistic surrogacy.

Critical Legal and Ethical Concerns

1. Commodification of Children

Critics argue commercial surrogacy treats children as products.

2. Exploitation of Women

Economically vulnerable women may be pressured into surrogacy.

3. Fragmentation of Motherhood

Modern reproductive technologies divide motherhood into:

• genetic motherhood,
• gestational motherhood,
• social motherhood.

4. Rights of the Child

Children may face:

• identity uncertainty,
• nationality problems,
• inheritance disputes.

5. Conflict Between Contract and Family Law

Courts often refuse to treat parenthood purely as a contractual matter.

Conclusion

Parentage disputes in surrogacy arrangements challenge traditional legal assumptions about family, motherhood, and reproduction. Courts worldwide have gradually shifted from rigid biological definitions toward intent-based and child-centric approaches. The leading decisions such as Baby M Case and Johnson v. Calvert established the foundational principles governing surrogacy disputes, while international cases such as Mennesson v. France emphasized the human rights and identity interests of surrogate-born children.