A bench headed by Justice Ranjan Gogoi also raised question whether such child can be granted dual citizenship for some limited purpose and asked the Centre to make its stand clear on the issue.
"Under the Constitution, a child born here from an Indian surrogate mother is entitled to Indian citizenship, but what happens if the biological mother is a foreign citizen and the child applies for citizenship of that country," it said.
Additional Solicitor General (ASG) Tushar Mehta, appearing for Centre, submitted that he would take instructions from the government and will spell out its stand on the next date of hearing.
"The concept of dual citizenship for surrogate children born in certain circumstances could be considered. This dual citizenship can give limited entitlements to such children," Justice Gogoi told Mehta and posted the case for further hearing after six weeks.
In traditional surrogacy a woman is artificially inseminated with the father's sperm and she then carries the baby and delivers it for the parents to raise. A traditional surrogate is the baby's biological mother.
In case of gestational surrogacy through In Vitro Fertilization (IVF) technology eggs are harvested from the mother which are fertilized with the sperm from the father, and the embryo is placed into the uterus of a gestational surrogate.
The surrogate then carries the baby until birth and she has no genetic ties to the child.