“EGG-CELLENT JUDGMENT”

 

Surrogacy is an arrangement in which a woman (the Surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the indented parent(s)). She is also gestational carrier as she is a woman who conceives, carry and gives birth to a child for another person or a couple.




 Under the Surrogacy (Regulation) Act 2021, a woman who is a widow or a divorced between the age of 35-45 years or a couple defined as a legally married woman and man, can avail services of surrogacy if they have a medical condition necessitating this option.

 The Man shall be between the age of 26-55 years and the Woman between the aged of 25-50 years shall not have any previous biological, adopted or surrogate child.

 


There is a ban on Commercial Surrogacy which is a punishable offence with a jail term of 10 years and a fine up to Rupees 10 Lakhs, so as to say that the Law only allows Altruistic Surrogacy where no money exchanged hand, where a surrogate mother is genetically related to those seeking a child.

 

The Assisted Reproductive Technology (Regulation) Bill 2020 was introduced to regulate surrogacy procedures. The Assisted Reproductive Technology (ART) refers to technique that seeks to obtain a pregnancy by handling a gamete (sperm/egg) outside the human body and transferring the gamete or fertilized embryo into the woman uterus. This arrangement includes In-Vitro Fertilization (IVF) i.e. fertilizing an egg in the lab.

 

Under the Surrogacy Act it is quite clear that another woman will bear a child for a couple or single women to be raised by the latter. The act in itself is very clear that surrogate offers to carry a baby through pregnancy and then return the baby to the intended parent(s) once it is born.

                            

Surrogacy is an option to fulfill the desire to have a child of a couple for whom it is physically or medically impossible or undesirable to carry a baby to turn own their own. There are three types of surrogacy- Traditional Surrogacy, Gestational Surrogacy and Altruistic Surrogacy. 

                            

- In Traditional Surrogacy, a surrogate mother is artificially inseminated, either by the intended father or an anonymous donor. The surrogate mother provides the egg and is the genetically related to the child.

 - In Gestational Surrogacy, an embryo is created using an egg and sperm produced by the indented couple and is transferred in to the surrogate uterus. The surrogate has not genetic link to the child as her eggs are not used to conceive the child. Surrogacy can be altruistic or commercial.

- In Altruistic Surrogacy the surrogate is not paid for her services except for medical expenses and insurance. The Surrogacy (Regulation) Bill seeks to ban Commercial Surrogacy where the surrogate is paid over and above the medical expenses and insurance.

Opting for surrogacy is often a choice made by the woman who is unable to carry children on their own on account of abnormal uterus or absence of the uterus etc. Upon birth the child is legally recognized as the biological child of the intended couple. In a significant judgment Bombay High Court held that merely donating eggs or sperm by a person doesn’t entitled them to claim any parental rights on the child born through IN-Vitro Fertilization (IVF).

Justice Milind Jadhav Pronounced the verdict by dismissing an argument of a woman, who (voluntarily) donated her OOCYTE (eggs for her sister). The court further clarified that the egg donor is a genetic mother but not a legal parent. The court has granted woman visitation rights to her 5 year old twin daughters, born through surrogacy.

 

The petitioner, seeking visitation rights stating that her twin daughters lived with her strained Husband and her younger sister who had donated the eggs as Surrogate.
 

Justice Milind Jadhav dismissed the claim and said further that the sister in law cannot be granted the status of the biological parent as her role was limited to being a voluntarily egg donor which her best can make her a genetic mother and not a legal parent.

 

The High Court turns down the Lower Court decision which denied the Petitioner the visitations rights to her twin daughters. The Court has directed the husband to allow her physical access to the twins for 3 hours every weekend. 

Petitioner and her husband were legally wedded couple, but Petitioner failed to conceive naturally due to medical issues and after consulting a gynecologist it was diagnosed that the eggs of the Petitioner were non-viable. They were advised to ‘altruistic surrogacy’ through an egg donor and their after the Petitioner approached her younger sister to be the egg donor to which her sister agreed and both the parties entered in to a surrogacy agreement. 

Due to marital discord the Petitioner husband moved along with his daughters to his native place without informing the Petitioner as  the Petitioner's sister was in depression after the accident where she lost her husband and children, with the help of the support of their own parents she started residing with her brother in law and started taking care of his twin daughters.

Petitioner filed a Police Complaint and an application seeking custody of her daughters under the provision of Guardian and Wards Act 1890 at District Court at Thane. The application was transferred to the Court of Ad-hoc District Judge Belapur, thereafter she files a interim application seeking visitation rights to her daughters which was rejected and there after she filed the present petition.

 

The Court stated that under the National Guidelines of (Accreditation, Supervision and Regulation) ART clinics in India and the Surrogacy Agreement, it was clearly stated that the child born through ART shall be presumed to be the legitimate child of the couple as having been born from the wedlock and with the consent of both the spouses.

 

- MAMTA SINGH SHUKLA

(ADVOCATE DELHI HIGH COURT)

MOBILE - 9560044035

Email Id: adv.mamtasinghshukla@gmail.com

 

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