‘Altruistic’ surrogacy
Source: By Omkar Gokhale: The Indian Express
The Bombay High Court reiterated that a sperm or egg donor cannot claim to be a biological parent of a child born through their gamete, and will have no legal right.
This came in a ruling in the case of a 42-year-old woman who was seeking custody of her twin-girls delivered through ‘altruistic’ surrogacy. The children were in the joint custody of their father and the egg-donor. The ruling discussed the rights and entitlement of a surrogate mother vis-à-vis a biological mother, and that of an egg donor to seek access and custody of the children.
A complicated case
The case for the custody of two-children is set in the context of some rather complicated family dynamics. The parents of the twins are currently living apart. The egg donor is the younger sister of the mother who is currently living with the father of twins. Just a few weeks after donating her eggs, she had lost her own daughter and husband in a tragic accident.
The custody case, however, is for the trial court to deal with. The Bombay High Court was hearing a writ petition which essentially sought clarity on the law. Can the egg donor have rights as a parent under the law, and can the trial court, as it decides the custody issue between the parents, exclude the mother in the meantime? The case moved up to the HC since the girls are young, and cannot be deprived of their mother.
Rival contentions
The mother argued the daughters were deemed to be legitimate children of the couple within wedlock, and all rights of biological parents vest in them. Citing the “growing age” of the twins, she sought immediate intervention of the court. She argued the twins are presently in custody of her sister and estranged husband, whom they consider to be their mother and father. This, she said, made it imperative for the issue of interim visitation rights to be decided, while the custody battle goes on.
The estranged husband, however, claimed that since his sister-in-law was an egg donor, she had a legitimate right to be called as a biological parent of the twins, and the petitioner, who is his wife, had no right over them whatsoever. As per the court records, both parties admitted that the younger sister of petitioner was the egg donor whereas the surrogate mother was a “separate anonymous woman who gave birth to the twin daughters in Bengaluru.”
What the law says
The law on surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology (ART) (Regulation) Act, 2021. These laws define surrogacy to mean “an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate.”
However, since the surrogacy agreement in this case was signed in 2018, the 2021 Act cannot apply. Instead, the 2005 National Guidelines on Assisted Reproductive Technologies (ART) Clinics would apply. Both Surrogacy Act, 2021 and Assisted Reproductive Technology (Regulation) Act, 2021, retained the intention behind the 2005 guidelines that the intending parents are to be considered biological parents of the surrogate child.
The 2005 guidelines state that the “donor has to relinquish all parental rights”. On this basis, the amicus curiae appointed by the Court submitted the petitioner’s younger sister (egg donor) lay a claim on the twin-children as they are considered to be legitimate children of the petitioner and her estranged husband.
The case highlights the risks with ‘altruistic surrogacy.’ The Surrogacy Act, 2021 and subsequent regulations provide for prohibition of commercial surrogacy and promote ‘altruistic’ surrogacy, especially through close relatives, in which the woman acting as a surrogate cannot receive any monetary remuneration or compensation beyond medical expenses. The laws stipulate punishments — up to Rs 5 lakh for first offence and jail-term of ten years, and fine of Rs 10 lakh for subsequent offences — for exploitation of surrogate mothers, and children born through surrogacy.
Bombay HC’s ruling
The Bombay HC, interpreting the ICMR guidelines, held that the twin girls were daughters of the petitioner and her estranged husband, as they were born from their wedlock and with their consent.
It said “there was no ambiguity whatsoever that it is the petitioner along with the respondent husband signed the surrogacy agreement” and they were “intending parents.”
“Under the guidelines, it is clearly stated that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and in that view of the matter, the younger sister of petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters,” the HC held.
Since the couple is estranged, the HC allowed visiting rights to the mother over the weekends till the trial court settles the custody issue.
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