Identifying the “Real Mother” in Commercial Surrogacy in India

Abstract

India has emerged as a favored destination for what is popularly known as “medical tourism.” Childless couples from numerous countries visit the country each year to fulfil their dream of a child of their own. Of the many modern choices available to childless couples, surrogacy in India seems to be among the most practicable, given the economical costs coupled with lack of stringent legal regulations. But the issue of maternity may burst this bubble. In surrogacy arrangements, determination of maternity poses a complex dilemma that can only be resolved by applying one of the following tests: (i) the intent test, (ii) the genetics test, (iii) the gestation test, or (iv) the best interest of the child test. However, the application of these tests depends on how the courts in a particular jurisdiction apply and interpret their familial laws. The only way forward is comprehensive legislation that will remove the ambivalence that shrouds the issue.

Key Words:

• Assisted reproductive technologies
• commercial surrogacy
• Baby Manji Yamada
• motherhood
• family ties