India’s High Court has ruled that the sperm or egg donors involved in a surrogate pregnancy have no rights to their biological children born to surrogates.
The court’s ruling on a tragic and thorny situation comes after a 42-year-old intended mother filed suit for visitation rights with the children she and her husband created via egg donation and surrogacy, and whom she lost access to when her husband moved out of the marital home.
In 2018, the couple — unable to conceive children naturally — entered into a surrogacy agreement that included the wife’s sister, who donated her eggs so that a child could be conceived and then born via a third-party surrogate mother. In August 2019, the twin girls – biological children of the husband and his sister-in-law – were born via a surrogate.
However, just months earlier in April 2019, the wife’s sister was involved in a tragic motor vehicle accident in which her own husband and her daughter were tragically killed. As she grieved the loss of her family, the twin girls — her biological daughters — were born via a surrogate. She watched them grow knowing they shared her DNA but were not legally hers.
The married couple began experiencing marital tension in 2021, and in March of that year, the husband moved out of the marital home and took the twins with him. At some point, the sister (the twins’ biological mother via egg donation) came to live with the husband and care for the girls — now her only surviving biological children — because of her grief.
The court case comes from the wife who sought visitation rights to the twins as their intended parent.
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As Live Action News has reported, India banned commercial surrogacy in 2021, only allowing surrogacy under certain conditions, most notably outlawing the payment of any fee or compensation other than medical expenses. However, lawyers for the plaintiff – the wife – successfully argued that as the surrogacy arrangement took place in 2018, the only guidelines in force at the time were issued by the Indian Council of Medical Research (ICMR) in 2005 and clearly stated that both the surrogate and donor “must relinquish in writing all parental rights concerning the offspring.”
“Under the guidelines, it is clearly stated that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and in that view of the matter, the younger sister of petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters,” according to The Indian Express.
Lost in the Indian media’s recounting of the saga were any details about the surrogate mother, which is indicative of the exploitative nature of surrogacy. At a June 2024 conference hosted by the Holy See advocating the abolishment of surrogacy, one speaker highlighted the problem of surrogacy “making the birth a depersonalized procedure” and resulting in the “commodification and exploitation of women and children.”
The practice of surrogacy is poorly regulated across the globe, exploits women, and commodifies children. The process of creating children to be taken away from the mother who carried them, or, as in this case, their biological mother as well, creates children who will knowingly be immediately traumatized for the benefit of adults.
As a result of the ruling, the intended mother was granted weekly visitation rights to the children, who remain with her estranged husband and sister, their biological mother. It is unclear how wide-ranging the court’s ruling is or whether it sets a broader precedent for the country.
