INTERNATIONAL JOURNAL OF ENGINEERING MANAGEMENT AND
SOCIAL SCIENCES

Resolving Surrogacy Disputes through Mediation: A Study of Legal Challenges, Ethical Concerns, and the Protection of Intended Parents and Surrogate Mothers

Purpose: Surrogacy brings together a gestating woman, intending parents, clinics, regulators and, above all, a child whose interests cannot wait for slow litigation. India’s shift from a largely unregulated commercial surrogacy market to the altruistic model of the Surrogacy (Regulation) Act, 2021 has changed the kinds of disputes that arise but has not removed them. This article examines whether, and on what terms, mediation under the Mediation Act, 2023 can serve as a legitimate forum for resolving surrogacy disputes while protecting both intended parents and surrogate mothers. Design/methodology/approach: The study adopts a doctrinal and comparative legal method. It analyses the Surrogacy (Regulation) Act, 2021, the Surrogacy (Regulation) Rules, 2022 and their amendments, the Assisted Reproductive Technology (Regulation) Act, 2021, the Mediation Act, 2023 and leading constitutional and family-law decisions, and compares the Indian position with the United Kingdom, California, Israel and New South Wales. Disputes are classified by subject matter, parties and mediability. Findings: A large part of the surrogacy dispute field is non-negotiable: commercial payment, abandonment of the child, coerced termination and the legal status of the child are fixed by statute and criminal law and fall outside the reach of private settlement. Yet a substantial band of disputes concerning expenses, insurance, communication, post-birth contact, information-sharing and the practical handover of the child is well suited to facilitative, rights-bounded mediation. The principal risks are structural power imbalance, family pressure on the “willing” surrogate and the absence of the child as a party. Originality/value: The article proposes a three-tier Surrogacy Mediation Framework (preventive, in-process and post-birth) with explicit statutory “red lines”, mandatory safeguards for surrogate mothers and a child-welfare checkpoint, and recommends targeted amendments to the surrogacy rules and mediation standards.