Heir? Or No Heir? The Inheritance Rights Of A Surrogate Child

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Aritra Sarkar
Apr 07, 2019   •  286 views

Surrogacy is a process and arrangement whereby a mother agrees to carry a artificially fertilized zygote in her womb and give birth to a baby for the intended parents who are not capable of giving birth to child normally. Such arrangement may include a contract in which the terms might involve that a surrogate mother must hand over the baby once after the delivery is done and should not claim it back later on. And during the process of surrogacy all the medical and other expenses will be borne by the intended parents. As we know in India commercial surrogacy was made legal in 2002 in the case of Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518, which means a surrogate mother taking money for the services provided. But due to lack of proper legislation to govern such commercial surrogacy, it was subject to improper use and for unethical benefits. This was treating the surrogate mothers like a baby producing factories and were being exploited by the commercial businesses.

This has alarmed the legislators and Surrogacy (Regulation) Bill, 2018 was passed and commercial surrogacy was banned in India. However, altruistic surrogacy, i.e., no payment of money for the service provided by the person as a surrogate mother other than expenses related to the pregnancy, is permitted in India, some interesting question arises which is with respect to inheritance rights of a surrogate child.

Have you ever wondered that can a surrogate child claim the property of the surrogate mother as an heir? This particular question is based on the relationship between the surrogate child and the surrogate wife and her husband. As per the Hindu Succession Act, 1956, every child of the legitimately married wife is considered as a legal heir of the husband. And the focus is not upon the legitimacy of the child but on the wed lock. Thus, the child of the surrogate mother will be entitled to be inherited by the property of the surrogate mother as well as her husband at the time of death. Another interesting question would be raised here is that can a surrogate child claim the property of the intended parents? The answer is no because the child is not given birth directly but through the process of surrogacy. In such cases, the intended parents if, wants to fully adopt the child and make them the heir of their family, a Will must be written specifying the surrogate child’s name and may give him the right to claim the property of the intended parents.

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