Date of judgement:
31 December 2021
Bench:
Justice Chitranshi Arora
Parties:
Plaintiffs – Ashish Wadhwa & Anr.
Defendants – Chaphala Haladar & Anr.
Subject
Gestational surrogacy is the process in which the gestational woman or the carrier carries the child and delivers it for another couple or parent. The egg involvedin the formation of the zygote does not belong to the surrogate mother.
Legal Provisions
- Section 10, The Indian Contract Act, 1872 - This sections defines the validity of any agreement made. Any agreement which is entered upon by two consenting and adult parties for a lawful consideration, is said to be a valid agreement.
Overview
- In this case, the plaintiff couple had a gestational agreement with the defendants according to which defendant no. 1 was the surrogate mother with the consent and approval of her husband.
- According to the agreement, neither defendant no. 1 nor her husband had any claim to the child once he/she was born and the sole guardian of the child was to be the plaintiff couple.
- Accordingly, defendant no. 1 gave birth to a baby girl through IVF and the child was handed over to the plaintiff couple as per the agreement made.
- The surrogate mother signed a written statement stating that she had fulfilled her end of the agreement and that she has nothing to do with either the parents of the child, or the child.
- She also mentioned in her statement that child would solely belong to the plaintiff couple and she would make no claims to it whatsoever.
Issues
The issue was not whether or not the plaintiffs were the legitimate parents of the child but that the plaintiffs were apprehensive that the defendants would stake a claim on the child at a later stage.
Judgement Analysis
- The judge noted that there are no laws in the territory of India which bar any couple from entering into an agreement of gestational surrogacy.
- There are guidelines issued by the ICMR (Indian Council of Medical Research) which govern surrogacy.
- According to these guidelines, any couple that chooses to go for surrogacy becomes the legitimate parents of the child born out of surrogacy.
- The court noted that the agreement drawn between the plaintiffs and the defendants was a legal and executable agreement as per section 10 of the Indian Contract Act, 1872.
- The Court thus declared the plaintiff couple to be the legal and biological parents of the baby girl and gave them all the rights to raise their child and support her.
- In addition to this, the court also restrained the defendants from making any future claims on the child and directed them follow the terms of the agreement.
Conclusion
Although there are no laws to regulate surrogacy in India, there was the Surrogacy Regulation Bill, 2019 that could not become a statute. In this era of homosexual couples and single parenting and also infertile couple, who are much more open to the options of surrogacy, it is the need of the hour to pass some statutes to regulate this process in our country.
