1. Core Principles of Legal Parentage in Surrogacy

(A) Mater semper certa est (Traditional Rule)

Historically, law followed the principle:

The woman who gives birth is the legal mother.

This favors the gestational surrogate, regardless of genetic connection.

(B) Intent-Based Parenthood (Modern Approach)

Modern surrogacy law increasingly uses:

Parenthood is determined by intention at the time of conception agreement, not just biology.

This supports intended parents as legal parents.

(C) Genetic Link Principle

Courts sometimes prioritize:

• genetic father (sperm provider)
• genetic mother (egg provider)

But this varies widely across jurisdictions.

(D) Best Interests of the Child

Almost all courts ultimately prioritize:

The welfare and stability of the child over contractual disputes.

2. Legal Framework in India (Context)

In India, surrogacy is now regulated under:

• Surrogacy (Regulation) Act, 2021
• Assisted Reproductive Technology (Regulation) Act, 2021

Key features:

• Only altruistic surrogacy allowed
• Intended parents are treated as legal parents after birth certificate process
• Surrogacy contracts are regulated but not fully contractual in private law sense

3. Case Laws on Legal Parentage in Surrogacy

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

Court: Supreme Court of India

Facts:

• Japanese couple used an Indian surrogate.
• Divorce occurred before birth.
• Child citizenship and parentage became disputed.

Held:

• Child recognized as needing immediate care and identity resolution.
• Supreme Court emphasized legal vacuum in surrogacy at that time.
• Grandmother allowed to take custody.

Significance:

• Highlighted absence of clear legal parentage rules in surrogacy.
• Reinforced need for statutory regulation.

2. Jan Balaz v. Anand Municipality (2009)

Court: Gujarat High Court (India)

Facts:

• German couple used Indian surrogate.
• Twins born in India.
• Germany refused citizenship because surrogacy not recognized.

Held:

• Indian authorities initially recognized intended parents.
• Citizenship issues remained unresolved.

Significance:

• Showed conflict between genetic, gestational, and nationality laws.
• Demonstrated importance of legal parentage for citizenship.

3. Suchita Srivastava v. Chandigarh Administration (2009)

Court: Supreme Court of India

Facts:

• Concerned reproductive autonomy of a mentally challenged woman.

Held:

• Reproductive choices are part of personal liberty under Article 21.

Significance for surrogacy:

• Strengthened idea that reproductive decisions (including surrogacy participation) are constitutionally protected.
• Indirectly supports autonomy-based parentage principles.

4. Johnson v. Calvert (1993)

Court: Supreme Court of California, USA

Facts:

• Surrogate carried child genetically related to intended parents.
• Dispute arose over motherhood.

Held:

• Court ruled in favor of intended mother, not gestational surrogate.

Principle Established:

When genetic and gestational motherhood conflict, intent governs legal parentage.

Significance:

• Landmark case establishing intent theory of parentage in surrogacy.

5. In re Baby M (1988)

Court: New Jersey Supreme Court, USA

Facts:

• Traditional surrogacy (surrogate used her own egg).
• Surrogate refused to relinquish child.

Held:

• Surrogacy contract declared void and unenforceable.
• Surrogate recognized as legal mother.

Significance:

• Reinforced traditional rule: birth mother = legal mother
• Early resistance to commercial surrogacy contracts.

6. Mennesson v. France (2014)

Court: European Court of Human Rights (ECHR)

Facts:

• French couple used surrogacy in USA.
• France refused to recognize parent-child legal relationship.

Held:

• Violation of child’s right to identity under Article 8 ECHR.
• Genetic father-child relationship must be legally recognized.

Significance:

• Strengthened child’s right to legal identity and parentage recognition.
• Pushed states toward recognizing foreign surrogacy outcomes.

7. Labassee v. France (2014)

Court: European Court of Human Rights

Held:

• Similar reasoning as Mennesson.
• Refusal to recognize parentage violates child’s rights.

Significance:

• Reinforced that legal parentage must reflect biological reality where appropriate.

8. Re G (Surrogacy: Foreign Domicile) (2008, UK)

Court: UK High Court

Held:

• Parental orders can transfer parentage from surrogate to intended parents.

Significance:

• Showed structured legal pathway to convert gestational parentage → intended parentage.

4. Key Legal Issues Emerging from Case Law

(A) Conflict of Three Types of Parenthood

• Genetic parents
• Gestational mother
• Intended parents

(B) Enforceability of Surrogacy Contracts

• US (Baby M): often invalid in early law
• India: regulated under statute, not pure contract law

(C) Citizenship and Nationality Problems

• Jan Balaz case shows international complications

(D) Child Welfare as Supreme Principle

Across jurisdictions:

Courts prioritize child stability over contractual disputes

(E) Shift from Biology to Intention

Modern trend:

• Moving from “birth-based motherhood” → “intent-based parenthood”

5. Conclusion

Legal parentage in surrogacy has evolved from a rigid biological model to a multi-factor legal test combining intention, genetics, gestation, and child welfare. While jurisdictions differ, the global trend is clear:

Intended parents are increasingly recognized as legal parents, provided the arrangement is lawful and the child’s welfare is protected.

However, cases like Baby M and Jan Balaz show that unresolved conflicts still exist, especially in cross-border surrogacy arrangements.