Beyond the Binary Mother-Father: Redefining Legal Parenthood in Contemporary India

The traditional binary of mother-father as the sole paradigm for legal parenthood is increasingly inadequate in contemporary India. Advances in assisted reproductive technologies (ART), the rise of gestational surrogacy, and changing family structures have created a complex landscape in which intended parents, commissioning parents, genetic donors, and gestational carriers may all claim a connection to the child. This paper critically examines Indian law and its approach towards definition, recognition and allocation of legal parenthood in non-traditional contexts. It analyses the Surrogacy (Regulation) Act, 2021; the Assisted Reproductive Technology Act, 2021; and landmark judicial pronouncements to argue that the legal regime remains bound to a mother-father binary, thus marginalizing commissioning parents in surrogacy arrangements, same sex couples and unmarried persons. This paper contends that the law should develop to acknowledge the presence of multiple parents, including intended and de facto parents, through a functional approach to parenthood that considers the best interests of the child. Using comparative jurisprudence from the UK, US and Canada, the paper develops a legislative framework for recognition of diverse family formations that safeguards accountability and child welfare.