Can a Surrogate Mother Keep the Baby After Birth?

The question of whether a surrogate mother can keep the baby she carries after birth has significant legal, ethical, and emotional implications. In India, the Surrogacy (Regulation) Bill, 2020, and other related legal provisions establish clear guidelines on the issue of custody. These laws are designed to protect the rights of both the surrogate mother and the intended parents, ensuring that the process is ethical and that the child's welfare is prioritized.

Legal Framework on Custody of the Child in Surrogacy

1. Surrogate Mother Cannot Keep the Baby

Under Indian law, a surrogate mother does not have the legal right to keep the child after birth. The child is considered the biological child of the intended parents (the couple or individuals who arranged for the surrogacy), not the surrogate. Once the child is born, the surrogate's role is over, and custody is transferred to the intended parents.

This is in line with the Surrogacy (Regulation) Bill, 2020, which clearly stipulates that:

• The surrogate mother has no legal claim to the child after birth.
• The intended parents are considered the legal parents and are entitled to custody of the child, even before the birth certificate is issued.
• Any contract between the surrogate and the intended parents, which is signed prior to conception, clearly establishes that the surrogate mother is carrying the baby for the intended parents and agrees to hand over custody after delivery.

2. Rights of the Surrogate Mother

While the surrogate mother carries the child, she is the biological mother of the child. However, her rights are limited, and she does not retain the right to custody after the birth, as the legal rights are transferred to the intended parents. Surrogates can have emotional bonds with the child, but legally, they do not have custody rights.

The surrogate is also entitled to receive proper post-natal care and emotional support after the birth, and she can make decisions related to her own health and well-being. However, any claim to custody of the child after birth is not legally recognized unless there are extraordinary circumstances (such as the intended parents abandoning the child or being unable to care for it).

3. Legal Process of Custody Transfer

The process of transferring custody of the child from the surrogate mother to the intended parents involves a few legal steps:

• The intended parents must complete the necessary legal formalities to establish their parental rights. This typically involves signing a legal surrogacy agreement before the pregnancy, which specifies that the intended parents will assume full custody once the child is born.
• A birth certificate is issued with the names of the intended parents, making them the legal parents of the child.
• The intended parents' names are listed as the legal guardians of the child, and they assume all rights and responsibilities associated with raising the child.

4. What Happens in Case of Disputes?

In rare cases, disputes may arise, such as when the surrogate mother wishes to keep the baby or if the intended parents cannot take custody for some reason. In such cases:

• The matter would likely be handled by a family court to resolve any disputes related to custody.
• The best interests of the child are prioritized, and the court would ensure that the child is placed in the care of the individuals who are best able to care for and raise the child, typically the intended parents.

5. Altruistic Surrogacy and No Commercial Compensation

The legal stance on altruistic surrogacy (surrogacy where the surrogate is not paid beyond medical expenses) is such that surrogates are expected to act as gestational carriers without any ownership claim over the child. The Surrogacy (Regulation) Bill, 2020, prohibits commercial surrogacy, which helps prevent any exploitation of the surrogate and ensures that she is not incentivized to keep the child for financial reasons.

6. The Role of the Surrogacy Agreement

The surrogacy agreement signed by the surrogate and the intended parents legally binds both parties to the terms of the arrangement:

• Custody of the child is clearly outlined in the agreement, specifying that the surrogate mother will hand over the child to the intended parents after birth.
• Legal recourse is provided if either party violates the terms of the agreement.

This legal agreement ensures that there is no ambiguity about the surrogate's role and her responsibility to the intended parents after childbirth.

Example

Priya, a surrogate mother in India, gives birth to a child for her cousin and his wife after they struggled with infertility for years. Throughout the pregnancy, Priya received medical care and compensation for her medical expenses, but she agreed in the surrogacy contract to hand over the child to her cousin once the baby was born. After the birth, Priya's cousins are listed as the legal parents on the birth certificate. Although Priya has emotional ties to the baby, she legally has no right to keep the child, and the baby is immediately transferred into the custody of her cousin and his wife.

Summary

Under Indian law, a surrogate mother cannot keep the baby after birth. The child is legally considered the biological child of the intended parents. The Surrogacy (Regulation) Bill, 2020 provides that intended parents are entitled to custody, and the surrogate mother is bound by the terms of the surrogacy agreement to hand over the child. The law protects the surrogate's rights to medical care, compensation for medical expenses, and emotional support, but it ensures that custody of the child is transferred to the intended parents immediately after birth.