Written by Ahana,
Gujarat National Law University.
March 2026
Introduction
It is only a court that is capable of determining which bond is indivisible, especially when a signed contract is involved alongside a biological bond.
The Assistive Reproductive Technology (ART) industry has experienced a phenomenal growth spurt since the birth of the first In Vitro Fertilization (IVF) baby in 1978, giving millions of people around the globe a “ray of hope in infertility.” The technological explosion, which now includes advancements such as artificial intelligence, genetic screens, has thus transformed the traditional concept of what constitutes a “parent.” In fact, being a parent has now, under this technological advancement, become a complex legal, societal, contractual arrangement rather than a biological function.
But what occurs when the legal compass is spinning chaotically?
Take, for instance, a courtroom setting where the ideology of “mother” and “parental rights” is at stake. In the matter of Shailja Nitin Mishra Vs. Nitin Kumar Mishra, which has been adjudicated recently by the Bombay High Court, the respondent, being the father of the twins via surrogacy, alleged that the surrogate mother, sister-in-law of the respondent, is the biological mother; therefore, his wife cannot have any parental rights over the daughters. This particular instance leads us to ponder a fundamental question: “Is the undertaking to waive all parental rights within a donor agreement sufficient to safeguard the parental rights of the legal parents, or is it merely the first line of defense?” The donor agreement, strengthened by the stringent provisions of the ART & Surrogacy Acts, is, therefore, far from a mere formality; it is, in fact, the defense line that protects the nuclear family. The very existence of the nuclear family is threatened by the claim of parental rights on the basis of genetic ties, whether from a known sperm donor or a familial egg donor.
The Donor Waiver and the Map of Parenthood Rights
The donor agreement is essentially the major tool of legal cartography within the legal drama of ART, demarcating the newly formed terrain of parentage even before the biological act of conception occurs. This is essentially a pre-emptive, legal waiver of all future rights and duties, from custody to visitation, to the life-giving, mutual responsibility of support, which appears as the official, voluntary, non-forced commitment on the part of the donor. This has been practiced even from the earliest regulatory regime in India; therefore, it is non-arbitrary. Even though it is not legally compulsory during that period, the ICMR Guidelines of 2005 set a critically significant moral tone: “the birth certificate of the child shall be in the name of the genetic parents, and the surrogate mother gives up, in writing, all parental rights to the child.” In order to shield the clinic, as well as the intended parents, from potential future litigation, the agreement on the part of gamete donors necessarily has to carry an irrevocable waiver, sometimes even a robust indemnity clause.
India’s legal situation
The solution to the most critical query; whether the parent is compelled to forego all rights and responsibilities toward the offspring on the basis of a contract is regulated under 2005 ICMR guidelines. The Assisted Reproductive Technology (Regulation) Act, 2021 clearly incorporates that:
“The child resulting from assisted reproduction technology, the child shall be considered the biological child of the commissioning couple, and such child shall be entitled to the rights, titles, and privileges conferred on a natural child only within the commissioning couple under the law, as from time to time in force. The donor shall waive all parental rights in respect of the child/children that may result from his/her gametes.”
Another mandate, which is the Surrogacy (Regulation) Act, 2021, is to clarify the legal ambiguity that existed with regard to surrogacy in India before the enactment of the said law. So far as the agreement and tough legal process are adhered to, it ensures that the parenthood is granted to the intending parents automatically from birth. This is made possible by a distinct two-step process that precludes any chance of a dispute:
1) The Pre-Natal Parentage Order: The couple, or the lady, has to obtain a court order pertaining to parentage, as well as the order pertains to custody, prior to commencing with the process of surrogacy. This order, basically on the basis of intention and the issuance of a medical necessity letter, preapproves the parentage.
2) Statutory Deeming Provision: The Act clearly states that the child born out of surrogacy is to be considered the biological child of the intended parents, who would have all rights that a biological child is supposed to have.
The Shailja Nitin Mishra vs. Nitin Kumar Mishra Case (Bombay High Court, 2024):
In the latest development for Shailja Nitin Mishra vs. Nitin Kumar Mishra, the most fundamental legal issue of whether the donor agreement survives a myriad of emotive bonding experiences and succeeding disputes within a family was squarely brought into question. In the case, which is involving the Bombay High Court with regard to custody rights to the donated twin offspring, genetics were clearly pitted against legislative intent.
The Conflict: The conflict arose when the Petitioner (wife/ intended mother), with the oocytes donated by the wife’s sister, planned to undertake surrogacy for a child with the Respondent No. 1 (husband/ intended father). After the dissolution of the marriage, the husband tried to stop his wife from accessing the daughters, stating that the sister who donated the oocytes is actually the mother of the daughters because a parental bond had been created.
The Claim: By taking use of the genetic contribution as a loophole, the father tried to contest the prospective mother’s legal dominance.
The Legal Question: Did the law grant the donor any legal rights, obligations, or interests toward the daughters, or was it intended to permanently terminate the donor’s function as a genetic mother?
The Decision of the Court
In supporting the intent, the Bombay High Court (Justice Milind N. Jadhav), in this case, allowed the petitioner (the Intending Mother) the rights to visit, thereby nullifying the order of the court below that denied such rights. The court clearly supported that the donation of sperm/eggs is in no way an inducement for parental rights.
In this matter, as stated in the verdict, the donor, who is the sister of the intended mother, is no more than “an oocyte donor, and at best, she may qualify to be a genetic mother, and nothing more,” reported the court. Most importantly, she “had no intending legal right whatsoever to claim to be the biological mother” on grounds of her biological make-up, as stated in the law.
International legal position
Although the Mishra Decision has strengthened the firewall within the Indian legal system to protect against claims from the donors, other countries have other mechanisms available in their legal systems that serve the same purpose, giving paramount importance to the intended parents’ intention. In this regard, for instance, in the UK, a court is compelled to make a mandatory Parental Order following the birth of the child as a means of legally vesting the rights that are initially assumed by the gestational surrogate, who is recognized as such from the onset, and the sperm donor. Equally in a more restrictive US State, the matter is premised on the pre-birth legal assurance, where the intended parents acquire a Pre-Birth Order attesting that the parents’ names are on the birth registration, thus from the onset, disqualifying claims from the surrogate mother and genetic donor. The overriding intention within the law is that which brings together these different systems, which, in their two distinct methods, justify the donor’s waiver with State oversight to forever cut ties with the biological parent, thus making a point that law, as distinct from biology, is paramount in recognizing one as a parent.
Conclusion
The conflict between the precise provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, and the more fluid, general norms of contract law lies, as our examination of donor related cases demonstrates, at the very core of determining parentage. The legal doctrine Lex Specialis which means Special Law Overrides a General Law, provides the appropriate resolution.
In order to govern such a specific sector, the Indian Legislature has deliberately overcome the general provisions of the Indian Contract Act, 1872 by developing the ART Act and the Surrogacy Act as Special Laws.
- The Court overruled the genetic or emotional relationship in Shailja Nitin Mishra on the basis of Lex Specialis by relying on the Special Law, which supersedes the normal law’s potential to recognize the relationship by arguing that the donor has to waive all his/her parental rights in an irrevocable manner. The deed of parentage is still the most significant legal document in that respect.
Therefore, the clear judicial consensus indicates that the ART Act is the highest authority. It prevents the formation of any future genetic claims by clearly defining the terms of intended parenthood and the donor exit option.
