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Beyond the Binary Mother-Father: Redefining Legal Parenthood in Contemporary India
Subject area: Arts, Social Sciences and Humanities · Area of research: Constitutional Law
DOI: 10.64388/IREV9I12-1718987
Abstract
The traditional binary of mother-father as the sole paradigm for legal parenthood is increasingly inadequate in contemporary India. Advances in assisted reproductive technologies (ART), the rise of gestational surrogacy, and changing family structures have created a complex landscape in which intended parents, commissioning parents, genetic donors, and gestational carriers may all claim a connection to the child. This paper critically examines Indian law and its approach towards definition, recognition and allocation of legal parenthood in non-traditional contexts. It analyses the Surrogacy (Regulation) Act, 2021; the Assisted Reproductive Technology Act, 2021; and landmark judicial pronouncements to argue that the legal regime remains bound to a mother-father binary, thus marginalizing commissioning parents in surrogacy arrangements, same sex couples and unmarried persons. This paper contends that the law should develop to acknowledge the presence of multiple parents, including intended and de facto parents, through a functional approach to parenthood that considers the best interests of the child. Using comparative jurisprudence from the UK, US and Canada, the paper develops a legislative framework for recognition of diverse family formations that safeguards accountability and child welfare.
Keywords
Assisted Reproductive Technology, Intended Parents, Legal Parenthood, Multiple Parents, Surrogacy Regulation
References
[1] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[3] NALSA v. Union of India, (2014) 5 SCC 438.
[4] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[5] Surrogacy (Regulation) Act, 2021 (No. 47 of 2021).
[6] Assisted Reproductive Technology Act, 2021 (No. 54 of 2021).
[7] Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
[8] ABC v. The State (NCT of Delhi), (2015) 10 SCC 1.
[9] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.
[10] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
[11] Jan Balaz v. State of Gujarat, (2009) 6 GLH 590.
[12] Independent Thought v. Union of India, (2017) 10 SCC 800.
[13] S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
[14] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
[15] Human Fertilisation and Embryology Act, 2008 (UK), c. 22.
[16] Ontario Family Law Act, R.S.O. 1990, c. F.3 (Canada).
[17] British Columbia Family Law Act, S.B.C. 2011, c. 25, s. 30 (Canada).
[18] Uniform Parentage Act (2017) (USA).
[19] A.A. v. B.B., 2007 ONCA 2 (Ontario Court of Appeal).
[20] Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (Oxford Univ. Press 1999).
[21] Martha A. Fineman, The Autonomy Myth: A Theory of Dependency (The New Press 2004).
[22] Ratna Kapur & Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (Sage Publ’ns 1996).
[23] Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex,” 1989 U. Chi. Legal F. 139.
[24] Katherine Drabiak, “The Commercialization of Reproductive Services,” 15 J. Health Care L. & Pol’y 207 (2012).
[25] Shalini Bhargava, “Surrogacy Law in India: The Way Forward,” 62 J. Indian L. Inst. 231 (2020).
[26] UNICEF, Innocenti Digest: The Right to Know One’s Origins (2004).
[27] Convention on the Rights of the Child, 1989, 1577 UNTS 3.
[28] Law Commission of India, Report No. 228: Need for Legislation to Regulate Surrogacy (2009).
How to cite this paper
@article{1718987,
author = {Afreen Nadeem},
title = {Beyond the Binary Mother-Father: Redefining Legal Parenthood in Contemporary India},
journal = {Iconic Research And Engineering Journals},
year = {2026},
volume = {9},
number = {12},
pages = {1702-1707},
issn = {2456-8880},
url = {https://www.irejournals.com/formatedpaper/1718987.pdf},
abstract = {The traditional binary of mother-father as the sole paradigm for legal parenthood is increasingly inadequate in contemporary India. Advances in assisted reproductive technologies (ART), the rise of gestational surrogacy, and changing family structures have created a complex landscape in which intended parents, commissioning parents, genetic donors, and gestational carriers may all claim a connection to the child. This paper critically examines Indian law and its approach towards definition, recognition and allocation of legal parenthood in non-traditional contexts. It analyses the Surrogacy (Regulation) Act, 2021; the Assisted Reproductive Technology Act, 2021; and landmark judicial pronouncements to argue that the legal regime remains bound to a mother-father binary, thus marginalizing commissioning parents in surrogacy arrangements, same sex couples and unmarried persons. This paper contends that the law should develop to acknowledge the presence of multiple parents, including intended and de facto parents, through a functional approach to parenthood that considers the best interests of the child. Using comparative jurisprudence from the UK, US and Canada, the paper develops a legislative framework for recognition of diverse family formations that safeguards accountability and child welfare.},
keywords = {Assisted Reproductive Technology, Intended Parents, Legal Parenthood, Multiple Parents, Surrogacy Regulation},
month = {June},
doi = {https://doi.org/10.64388/IREV9I12-1718987}
}