Are DNA Tests Mandatory in Surrogacy Cases?

In surrogacy arrangements, DNA tests are not necessarily mandated by law, but they often play a crucial role in confirming parentage and ensuring the legal rights of the intended parents. Surrogacy involves complex issues related to biological and legal parenthood, and in certain cases, DNA testing may be required to clarify the relationship between the child and the intended parents. The Surrogacy (Regulation) Bill, 2020 and other legal frameworks in India emphasize the importance of establishing clear legal parentage, which may involve DNA testing in specific situations.

1. DNA Tests in Surrogacy: Legal Context:

a. Surrogacy (Regulation) Bill, 2020:

The Surrogacy (Regulation) Bill, 2020 does not explicitly mandate DNA testing in all surrogacy cases but requires legal documentation that establishes the relationship between the intended parents and the child. The Bill primarily focuses on ensuring that the intended parents are recognized as the legal parents of the child born through surrogacy. If there is any doubt about parentage (for instance, in cases of disputes over biological parentage), DNA testing can be used as an important tool to verify the biological connection between the child and the intended parents.

b. Role of DNA Testing:

In gestational surrogacy, where the surrogate mother is not genetically related to the child (i.e., the child is conceived using the intended parents’ egg and sperm), DNA testing is usually not needed to establish the biological relationship between the child and the intended parents. However, if the intended father or intended mother has any doubts about the genetic link to the child, a paternity test (in the case of the father) or maternity test (in the case of the mother) could be conducted.

c. Cases of Traditional Surrogacy:

In traditional surrogacy, where the surrogate mother provides the egg, a DNA test is often necessary to confirm the biological relationship between the child and the surrogate mother. The intended father in traditional surrogacy may require a paternity test to confirm that the child is biologically his. Since traditional surrogacy involves a genetic relationship between the surrogate and the child, DNA testing helps clarify issues related to biological parentage and parental rights.

2. Practical Implications of DNA Testing:

a. Establishing Parentage:

DNA testing can be used in surrogacy to confirm the genetic relationship between the child and the intended parents. This is important for establishing the legal parentage of the intended parents, which is crucial for inheritance, custody, and other parental rights. If there is any dispute over the biological connection between the child and the intended parents, DNA tests serve as clear evidence that can help resolve such disputes. It can be particularly relevant if there are concerns about the egg or sperm donor in cases where the egg or sperm used in conception was from a donor and not the intended parents.

b. Protecting the Rights of the Surrogate:

DNA tests may also be used to ensure that the surrogate mother has no genetic connection to the child, thereby protecting the rights of the intended parents. In some cases, particularly in traditional surrogacy, the surrogate’s potential claim to the child’s parentage is an area of concern, and DNA testing can confirm her role solely as the carrier and not the biological mother.

c. Legal Challenges in Surrogacy:

In rare cases, disputes between the surrogate and the intended parents over the parental rights may arise. In such situations, DNA tests can play a critical role in settling the matter by providing evidence of biological parentage. This is important to avoid legal complications that may arise if the surrogate mother claims parental rights to the child.

3. When DNA Testing is Required:

• Verification of Parental Rights: If the intended parents want to verify their biological connection with the child, DNA tests can be used to confirm that the egg and sperm used in the conception were indeed from the intended parents.
• In Case of Legal Disputes: If there is a dispute over who the biological parents are, DNA tests may be ordered by a court to determine parentage.
• In Traditional Surrogacy: Since the surrogate mother is genetically related to the child in traditional surrogacy, DNA testing is often necessary to clarify her biological connection to the child and her parental rights.

4. Example:

Example 1: A couple opts for gestational surrogacy, where the surrogate mother carries the child conceived using the intended mother’s egg and intended father’s sperm. After the birth of the child, they do not require a DNA test to establish their parentage, as there is no genetic link between the surrogate and the child.

Example 2: In a traditional surrogacy arrangement, the surrogate mother uses her own egg, and the child is genetically related to her. The intended father, concerned about the biological connection, requests a DNA paternity test to confirm that he is the biological father. The DNA test confirms his parental rights, and the child is legally recognized as the intended father’s child.

5. Conclusion:

While DNA tests are not mandatory in all surrogacy cases under Indian law, they are often a vital tool for establishing parentage and resolving any potential disputes. In gestational surrogacy, where there is a clear genetic connection between the intended parents and the child, DNA testing may not be necessary. However, in cases of traditional surrogacy, where the surrogate is genetically related to the child, DNA tests become more important to clarify the biological relationship and confirm the parental rights of the intended parents. The use of DNA tests ensures clarity in parent-child relationships, helps avoid legal complications, and provides protection for both the child and the intended parents.