INTRODUCTION
For centuries, determining who a child’s mother is was considered one of the simplest questions in law. The woman who gave birth to the child was naturally regarded as the mother, and legal systems across the world built their rules around this assumption[1]. However, advances in reproductive technology have transformed what once appeared straightforward into a complex legal puzzle.
Today, a child may have a genetic mother whose egg contributed to the child’s DNA, a gestational mother who carried the pregnancy and gave birth, and an intending mother who raises the child as her own[2]. While medical science has successfully separated these roles, the law has struggled to keep pace.
This challenge becomes particularly significant in the context of inheritance. Imagine a Hindu man who dies intestate, that is, without leaving behind a will[3]. His child was born through surrogacy using his sperm and an anonymous donor egg. The surrogate carried the child but has no genetic connection with it, while the egg donor shares a biological link but never carried or raised the child. In such a situation, who should be legally recognised as the child’s mother for the purposes of succession under Hindu law?
Surprisingly, Indian law offers no clear answer.
THE CHANGING LANDSCAPE OF PARENTHOOD
The enactment of the Surrogacy (Regulation) Act, 2021 marked a significant shift in India’s approach towards assisted reproduction[4]. The legislation permits only altruistic surrogacy and prohibits commercial surrogacy[5]. The law also envisions the surrogate mother as a close relative of the intending couple, though subsequent regulatory developments have modified some practical requirements[6].
Despite creating a framework for surrogacy arrangements, the Act remains largely silent on one important issue: egg donation[7]. The legislation does not adequately address situations where the woman intending to raise the child is neither the genetic mother nor the gestational mother.
As a result, a child born through surrogacy may have multiple women connected to motherhood in different ways. While family law generally recognises the intending couple as the legal parents, succession law has not yet adapted to this reality[8].
This gap becomes problematic because inheritance rights often depend upon clearly identifying family relationships. When different women can simultaneously claim biological, gestational, and social connections to the same child, traditional legal definitions become difficult to apply.
THE POSITION UNDER THE HINDU SUCCESSION ACT
The Hindu Succession Act, 1956 was enacted at a time when assisted reproductive technologies did not exist[9]. Consequently, the legislation assumes that motherhood is a single and indivisible concept[10].
The Act does not contain any detailed definition explaining how “mother” should be identified in cases involving surrogacy or donor conception. The statutory framework was designed around conventional family structures where the woman who gives birth is also the genetic and social mother[11].
This creates a serious interpretative challenge. If inheritance disputes arise involving a child born through surrogacy, courts would be forced to determine whether the word “mother” should be understood in a genetic sense, a gestational sense, or a social and intentional sense.
The answer is important because legal recognition of motherhood affects not only the child’s rights but also the rights of other family members who may claim succession benefits through their relationship with the child.
Unfortunately, neither the Hindu Succession Act nor existing judicial precedents provide a definitive solution[12].
GENETIC MOTHERHOOD: DOES DNA MATTER MOST?
One possible argument is that the genetic donor should be recognised as the mother because she contributes half of the child’s biological makeup.
Supporters of this view may argue that succession law has traditionally attached importance to blood relationships[13]. Since inheritance often follows biological lineage, recognising the genetic mother may appear consistent with the broader principles underlying family property rights.
Modern genetic science can establish biological parentage with near certainty[14]. Therefore, it may be argued that the woman whose genetic material helped create the child occupies the strongest biological position.
However, this approach encounters several difficulties.
First, egg donors generally participate in reproductive arrangements with the understanding that they will not acquire parental rights or responsibilities[15]. They do not intend to become mothers in the legal sense.
Second, recognising anonymous donors as legal mothers could create enormous practical complications. It would potentially expose donors to future inheritance claims and disrupt the expectations of intending parents.
Most importantly, a purely genetic approach ignores the social and legal realities of parenthood. DNA alone has never been the sole basis of family relationships. Adoption law, for example, has long recognised parent-child relationships without any biological connection[16].
Therefore, while genetics may be relevant, it is difficult to argue that it should automatically determine legal motherhood for succession purposes.
GESTATIONAL MOTHERHOOD: DOES BIRTH CREATE MATERNITY?
A competing view focuses on the woman who carries the child and gives birth.
Historically, legal systems have often followed the principle that motherhood is established through childbirth[17]. The rationale is simple: while biological paternity may once have been uncertain, the identity of the woman who gives birth is easily ascertainable.
Applying this principle to surrogacy would mean recognising the surrogate as the legal mother.
The gestational mother undoubtedly plays a significant role in the child’s development. Pregnancy involves physical, emotional, and medical commitments that extend far beyond merely providing a biological environment[18].
However, this interpretation also creates problems.
The surrogate enters into the arrangement specifically to assist another family in having a child. She generally has no intention of establishing a permanent parental relationship. Treating her as the legal mother for inheritance purposes would conflict with the very purpose of surrogacy.
Furthermore, Indian surrogacy law seeks to ensure that the child becomes part of the intending parents’ family[19]. Granting the surrogate continuing legal status as a mother may undermine this objective.
Thus, while gestation remains important, relying exclusively upon childbirth may not reflect the realities of modern reproductive arrangements.
THE UNEXPLORED QUESTION: CAN THE SURROGATE CLAIM A SHARE IN JOINT FAMILY PROPERTY?
Perhaps the most fascinating issue is one that has received almost no scholarly or judicial attention.
The Surrogacy (Regulation) Act originally envisioned the surrogate as a close relative of the intending couple[20]. Suppose a woman acts as a surrogate for her relative and subsequently claims that her status as the child’s gestational mother creates a legal connection for succession purposes. Could such a surrogate argue that she falls within the category of female relatives entitled to claim rights in relation to the deceased coparcener’s estate?
At first glance, the answer appears to be no. The Hindu Succession Act does not automatically grant inheritance rights merely because someone is a close relative. Rights arise through specifically recognised relationships and statutory categories[21].
Moreover, the purpose of the surrogate arrangement is not to create a new family tie but to facilitate the birth of a child for the intending parents.
Nevertheless, the issue remains legally unresolved. Since no court has directly examined the interaction between the Surrogacy Act and the Hindu Succession Act in this context, the possibility of innovative legal arguments cannot be completely dismissed.
The absence of litigation does not mean the question lacks significance. As assisted reproductive technologies become more common, courts may eventually be required to confront precisely such disputes.
TOWARDS A PURPOSE-ORIENTED INTERPRETATION
If Indian courts were faced with this issue today, a purposive interpretation would likely provide the most sensible solution.
Rather than focusing solely on genetics or gestation, courts may recognise the intending mother as the legal mother for succession purposes. This approach aligns with the objective of surrogacy arrangements, protects the welfare of the child, and promotes certainty in inheritance matters.
Many foreign jurisdictions have increasingly moved toward recognising intentional parenthood as the foundation of legal parentage in assisted reproduction cases[22]. Such an approach reflects the understanding that parenting involves far more than biological contribution.
Recognising intending parents also avoids the practical difficulties associated with anonymous donors and surrogate mothers who never intended to assume long-term parental roles[23].
While this solution may require judicial innovation, it is arguably the interpretation most consistent with contemporary family realities.
CONCLUSION
The question of who qualifies as a “mother” under Hindu succession law once seemed obvious. Advances in reproductive technology have transformed that certainty into a legal grey area[24].
Where a child is born through surrogacy using a donor egg, the genetic mother, gestational mother, and intending mother may all be different individuals[25]. Yet the Hindu Succession Act continues to operate on assumptions formed long before such possibilities existed[26].
The resulting uncertainty raises difficult questions about inheritance, lineage, and family identity. It also exposes the growing disconnect between traditional succession laws and modern reproductive practices.
Until legislative reform or judicial clarification emerges, the debate between genetic and gestational motherhood will remain unresolved. When that dispute finally reaches an Indian courtroom, the decision will not merely determine inheritance rights. It will shape the legal meaning of motherhood itself in the twenty-first century.
References:
[1] Emily Jackson, MEDICAL LAW: TEXT, CASES, AND MATERIALS (5th edn, OUP Oxford 2019)
[2] Susan Golombok, MODERN FAMILIES: PARENTS AND CHILDREN IN NEW FAMILY FORMS (CUP 2015)
[3] Hindu Succession Act 1956
[4] Surrogacy (Regulation) Act 2021
[5] Ibid
[6] Surrogacy (Regulation) Act 2021
[7] Ibid
[8] Ibid
[9] Hindu Succession Act 1956
[10] Ibid
[11] Dr Paras Diwan, Modern Hindu Law (27th edn, Priya Law House 2023)
[12] Hindu Succession Act 1956
[13] Diwan (n 11)
[14] John A Robertson, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES (Princeton University Press 1996)
[15] Surrogacy (Regulation) Act 2021; Jackson (n 1)
[16] Dinshah Fardunji Mulla, Principles of Hindu Law (Gale, Making of Modern Law 2013)
[17] Jackson (n 1)
[18] Golombok (n 2)
[19] Surrogacy (Regulation) Act 2021.
[20] Ibid
[21] Hindu Succession Act 1956
[22] Golombok (n 2)
[23] Jackson (n 1)
[24] Emily Jackson, Medical Law: Text, Cases, and Materials (5th edn, OUP 2019) 915–930.
[25] Susan Golombok, Modern Families: Parents and Children in New Family Forms (Cambridge University Press 2015) 145–162.
[26] Hindu Succession Act 1956.
