EGG-CELLENT JUDGMENT: Bombay High Court Clarifies Legal Parenthood in Surrogacy Cases

🥚 EGG-CELLENT JUDGMENT: Understanding Surrogacy Laws in India

🌐 Introduction

Surrogacy in India is a legal arrangement where a woman (the surrogate mother) agrees to carry and deliver a child for another person or couple, known as the intended parent(s). She is also referred to as a gestational carrier, as she conceives, carries, and gives birth on behalf of others.

This practice raises complex ethical, legal, and emotional questions, leading to the enactment of the Surrogacy (Regulation) Act, 2021, which governs all surrogacy arrangements in India.

⚖️ The Surrogacy (Regulation) Act, 2021

Under the Surrogacy (Regulation) Act, 2021, only altruistic surrogacy is permitted in India. This means:

  • Eligible Women: A widow or divorced woman aged 35 to 45 years, or a legally married couple (man aged 26–55 and woman aged 25–50) with a medical condition preventing conception, may opt for surrogacy.

  • Eligibility Condition: The intending couple must not have any previous biological, adopted, or surrogate child.

  • Ban on Commercial Surrogacy: Any form of commercial surrogacy—where payment beyond medical and insurance costs is made—is a punishable offence with up to 10 years’ imprisonment and a ₹10 lakh fine.

  • Allowed Form: Only altruistic surrogacy, where no monetary exchange occurs, is permitted.

🧬 Assisted Reproductive Technology (ART) Regulation

ART involves obtaining pregnancy by handling gametes (sperm or eggs) outside the body and transferring the fertilized embryo into the uterus.

  • In-Vitro Fertilization (IVF): Fertilizing an egg in a laboratory setting.

  • Purpose: To help couples who cannot conceive naturally due to medical or anatomical reasons.

👶 Types of Surrogacy in India

1. Traditional Surrogacy

The surrogate is artificially inseminated with sperm from the intended father or a donor. She provides the egg and is thus genetically related to the child.

2. Gestational Surrogacy

The embryo is created using the intended couple’s egg and sperm through IVF and transferred into the surrogate’s uterus.
👉 The surrogate has no genetic link to the child.

3. Altruistic Surrogacy

The surrogate is not paid except for medical expenses and insurance.
The Surrogacy Act, 2021 completely bans commercial surrogacy to prevent exploitation.

⚖️ Landmark Judgment: Bombay High Court’s EGG-cellent Decision

In a landmark judgment, the Bombay High Court clarified that donating eggs or sperm does not confer parental rights over a child born through In-Vitro Fertilization (IVF).

Justice Milind Jadhav ruled that an egg donor is a genetic mother but not a legal parent.

🧾 Case Summary

  • The petitioner (wife) and her husband opted for altruistic surrogacy as she was unable to conceive.

  • Her younger sister volunteered to donate eggs for IVF.

  • Later, due to marital discord, the husband moved away with the twin daughters.

  • The sister (egg donor) began living with them and claimed parental rights over the twins.

⚖️ Court’s Observations

  • The court dismissed the egg donor’s claim, stating her role was limited to being a voluntary donor, not a legal parent.

  • The biological and legal parents remain the intended couple under the Surrogacy and ART Acts.

  • The petitioner (mother) was granted visitation rights—three hours every weekend.

🧑‍⚖️ Key Legal Takeaway

Under National ART Guidelines and the Surrogacy Agreement, a child born through ART is legally presumed to be the legitimate child of the intended couple.

💡 Conclusion

The Surrogacy (Regulation) Act, 2021, and ART Regulation Bill, 2020, collectively ensure ethical surrogacy practices and protect the rights of women and children.
The Bombay High Court’s decision reinforces the principle that genetic contribution does not determine legal parenthood—intent and lawful agreement do.

Surrogacy remains a ray of hope for couples who cannot conceive naturally, while the law ensures it is conducted ethically, transparently, and without exploitation.

Advocate Mamta Singh Shukla
Supreme Court of India
📞 Mob. No. - 9560044035

      

 

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