The fundamental area of law that controls the dynamics, rights, and obligations of family relationships
is family law. The complex nature of interpersonal ties within the family structure is substantially
addressed and handled in order to secure the welfare and protection of its members.
This field of law deals with a wide range of issues, including domestic violence, property division,
paternity, adoption, guardianship, marriage and cohabitation, divorce and annulment, child custody
and visitation rights, child and spousal support, and paternity. Family law frequently necessitates a
careful balancing act between the formalities of the law and the emotional sensitivity of the parties
involved because of how deeply personal these matters are.
The fundamental purpose of family law is to give families a framework for resolving disputes in a
way that protects everyone’s welfare and dignity, especially children. Because of the mobility of
family structures and cultural norms, family law is always evolving to deal with new problems and
It is typically advised that those who are involved in family disputes or who wish to understand their
rights and duties within the family unit speak with a family law professional who can offer advice
catered to the particular circumstance and jurisdiction.
Certain nations have established specialized tribunals for family problems, aimed at pursuing religious, political, or
Another approach has been to establish social courts that have a functional relation to the legal
problems affecting families. Such problems include marriage, divorce, and maintenance of spouses or
of children, adoption, and custody of children, contracts for marriage and judicial separation. Despite the fact that these issues give rise to the most private legal litigation in most countries,
In many nations, the normal courts have not accorded family law the same prominence.
Because family law deals with human connections, proponents of special courts for family matters contend that the legal system should be distinct from that of regular civil cases. In a family affair, the facts of the disagreement might not be as important as the underlying issues (financial difficulties, health, and addiction to drugs or alcohol) that have projected the issue.The fact that a large percentage of family cases are uncontested or non-contentious is another reason in favor of family courts instance, adoption and care processes typically call for more consideration of the child’s best interests than a strict execution of the law.
Due to the frequent involvement of children and youth, special legal officials are required to provide the court with investigation materials or to represent the interests of the children, which may conflict with the positions taken by their parents).
In India setting up of Family Courts and its functioning lies within the domain of State Government in
consultation with their respective High Courts. In order to promote compromise and provide a speedy
resolution of disputes regarding marriage and family problems, State administrations are permitted to
establish Family Courts after consultation with the High Courts. According to the Act, a Family Court
must be established by the State Government in every city or municipality with a population more
than one million. The State Governments may decide to establish Family Courts in other States if they
see fit. In regions without such courts, the 14th Finance Commission has advocated establishing 235
family courts between 2015 and 2020. Additionally, the Commission advised State Governments to
make use of the increased budgetary headroom made possible by tax devolution (32% to 42%) for this
purpose. Currently 762 Family Courts are functional across the country (June 2023).
A woman agrees to become pregnant and give birth on behalf of a person or couple who will
care for the child after delivery in a surrogacy arrangement. Individuals or couples may
decide for surrogacy for a number of reasons, including as infertility, health issues, or other
unique conditions. Surrogacy comes in two primary flavours:
- Traditional Surrogacy: In this type of surrogacy, the biological mother of the child is also
the surrogate mother. The prospective father’s sperm or donor sperm is used to fertilise her
egg. This procedure is less frequent and can have more complicated emotional and legal
ramifications because the surrogate is genetically linked to the kid.
- Gestational Surrogacy: The surrogate mother in gestational surrogacy is not a genetic
relative of the child. The intended parents’ (or donors’) eggs and sperm are used to make the
embryo, which is then put into the surrogate’s womb. Due to less complicated legal issues
around parental rights and a better separation between the surrogate’s and intended parents’
responsibilities, this procedure is more often used. Prominent Legal Aspects Of Surrogacy:
- Parental Rights:
- Establishing Parentage: The most crucial legal aspect of surrogacy is ensuring that the intended
parents are recognized as the legal parents of the child once born. Different jurisdictions have varied
approaches to this. Some immediately recognize intended parents, while others initially recognize the
surrogate as the legal mother, requiring a post-birth process to transfer rights.
- Pre-Birth Orders: Some jurisdictions allow for pre-birth orders that designate the intended parents
as the legal parents from the moment of birth.
- Post-Birth Adoption: In regions where the surrogate is initially considered the legal parent,
intended parents may need to adopt the child, even if genetically related.
- Contractual Agreements:
Purpose and Scope: A surrogacy contract outlines the rights, responsibilities, and expectations of
both the surrogate and the intended parents. It might cover issues like the surrogate’s behavior
during pregnancy, contact frequency, and compensation.
Enforceability: The enforceability of surrogacy contracts varies by jurisdiction. Some regions
recognize and enforce these agreements rigorously, while others might not recognize them at all.
Compensation vs. Altruism: Many contracts involve compensating the surrogate beyond medical
and incidental expenses. However, some regions only permit altruistic surrogacy, where no such
compensation is allowed.
- Intersection of Family and Reproductive Law:
Traditional vs. Gestational Surrogacy: The distinction between the surrogate being the genetic
mother (traditional surrogacy) or simply the gestational carrier (gestational surrogacy) can have
varied legal implications. Gestational surrogacy often has fewer legal hurdles due to the lack of
genetic ties between the surrogate and the child.
Rights of the Child: The child’s rights, especially in international surrogacy arrangements, are
paramount. The child must have assured citizenship, and cases where children end up stateless
due to surrogacy complications are particularly concerning.
Regulation of Clinics: Medical clinics performing in vitro fertilization (IVF) for surrogacy can be
subject to specific regulations, ensuring ethical and safe practices.
- International Surrogacy and Cross-Border Issues:
- Legal Inconsistencies: The legal status of surrogacy varies worldwide. What’s permitted in one
country might be illegal in another, creating challenges for international intended parents.
- Citizenship and Travel: Once the child is born, intended parents might face challenges in getting
their child’s citizenship recognized or obtaining necessary travel documents.
- Ethical Concerns:
Exploitation: Concerns arise about potential exploitation of surrogates, especially in countries
where regulations are lax or non-existent.
Choice and Consent: Ensuring the surrogate’s autonomy, informed choice, and freedom from
coercion is crucial from a legal and ethical standpoint.
In summary, while surrogacy provides a path to parenthood for many who might not have had one
otherwise; it’s surrounded by intricate legal considerations. As reproductive technology and societal
norms continue to evolve, so too will the legal landscape of surrogacy. Prospective parents and
surrogates should always seek specialized legal counsel to navigate this intricate area of family law.
Laws for Surrogacy
India was once a hub for commercial surrogacy. Couples from all over the world would come
to India due to the comparatively low costs and relatively lax regulations. This raised issues
with surrogate mother exploitation, particularly in underprivileged areas. There have been
instances of unethical behaviour over time, including withholding payment, giving
inadequate medical treatment, and abusing surrogates.
The Indian government therefore developed:
The 2019 Surrogacy (Regulation) Bill, this was India’s most recent significant surrogacy law.
The legislation was intended to control the practise of surrogacy and address concerns about
the abuse of surrogate mothers, the abandonment of offspring conceived through surrogacy,
and the commercialization of surrogacy. The essentials consist of:
Altruistic Surrogacy: The measure exclusively permits altruistic surrogacy, which implies that the
surrogate mother cannot get any financial remuneration aside from insurance and medical costs.
Eligibility for Intending Parents: The measure mandates that only Indian heterosexual couples
who have been wed for at least five years and do not already have a living child (whether
biological, adoptive, or through surrogate) may choose to become surrogates. 26 to 55 for the wife
and 23 to 50 for the husband are the optimal age ranges for the couple. A member of the
relationship must also have an inability to conceive.
Eligibility for Surrogate Mothers: A close relative of the intending couple, married, and having a
child of her own can be a surrogate. She can be a surrogate only once in her lifetime and must be
between the ages of 25-35 years.
Commercial Surrogacy Ban: Commercial surrogacy, where surrogates are paid beyond medical
expenses, is prohibited.
Establishment of Regulatory Bodies: The bill provides for the establishment of national and state-
level surrogacy boards to ensure the effective regulation of surrogacy clinics and the practice