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.
AllenA.L. (1991). The black surrogate mother. Harvard Blackletter Journal, 8, 17–31.
2.
Black’s Law Dictionary (7th ed.1999). Boston, MA: West Publishing C.
3.
BlackburnC. (2008). Family law: Who is a mother—Determining legal maternity in surrogacy arrangements in Tennessee. University of Memphis Law Review, 39, 349–382.
4.
BoivinJ.BuntingL.CollinsJ.A.NygrenK.G. (2007). International estimates of infertility prevalence and treatment-seeking: Potential need and demand for infertility medical care. Human Reproduction, 22(6), 1506–1512.
HurwitzI. (2000). Collaborative reproduction: Finding the child in the maze of legal motherhood. Connecticut Law Review, 33, 127.
9.
Indian Evidence Act. (1872). Section 112: Birth during marriage, conclusive proof of legitimacy.
10.
KimbrellA. (1993). The human body shop: The engineering and marketing of life. San Francisco: Harper Collins.
11.
KrimT.M. (1996). Beyond Baby M: International perspectives on gestational surrogacy and the demise of the unitary biological mother. Annals of Health Law, 5, 193–226.
12.
LarkeyA.M. (2002). Redefining motherhood: Determining legal maternity in gestational surrogacy arrangements. Drake Law Review, 51(3), 605–632.
13.
Ministry of Health and Family Welfare & Indian Council of Medical Research. (2005). National guidelines for accreditation, supervision and regulation of ART clinics in India. Retrieved June 16, 2014, from http://icmr.nic.in/art/art_clinics.htm
14.
Ministry of Home Affairs & Government of India. (2013). Types of visa for foreign nationals intending to visit India for Commissioning Surrogacy and conditions for grant visa for the purpose. Retrieved May 9, 2014, from http://mha1.nic.in/pdfs/CS-GrntVISA-291112.pdf
RajaA.AjayL. (2013, July14–20). Just another normal delivery. Eye, The Indian Express, p. 4.
19.
GuptaP. (2013, July5). Surrogacy is an alternative to adoption. Delhi Times, The Times of India. p. 1.
20.
RussellI.S. (1988). Within the best interests of the child: The factor of parental status in custody disputes arising from surrogacy contracts. Journal of Family Law, 27(3), 585–671.
21.
Russell-BrownS.L. (1991). Parental rights and gestational surrogacy: An argument against the genetic standard. Columbia Human Rights Law Review, 23(2), 525–554.
22.
SchwartzL.L. (1991). Alternatives to infertility: Is surrogacy the answer?New York: Brunner/Mazel, Inc.
StorrowR.F. (2005). Quests for conception: Fertility tourists, globalization and feminist legal theory. Hastings Law Journal, 57, 295–330.
25.
TanejaP. (2013, October28). The couple having four babies by two surrogates. BBC News. Retrieved June 16, 2014, from http://www.bbc.co.uk/news/uk-24670212
