Bombay High Court: Petitioner’s application seeking access and visitation rights to her twin daughters was rejected by the impugned order dated 25-09-2023 and thus being aggrieved by rejection of her application, petitioner filed the present petition. A Single Judge Bench of Milind N. Jadhav, J., observed that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and thus, in the present case, petitioner’s sister could have no right whatsoever to intervene and claim to be the biological mother of petitioner’s daughters.
Background
Petitioner and Respondent 1 were legally wedded husband and wife, and petitioner failed to conceive naturally due to medical issues of both parties, hence they consulted a Gynaecologist and it was diagnosed that eggs of petitioner were non-viable. The Gynaecologist advised them “altruistic surrogacy” through an egg donor and petitioner approached her younger sister to be the egg donor to which her sister agreed and thus, the parties entered into a Surrogacy Agreement.
Petitioner’s sister donated her eggs and surrogacy procedure through IVF commenced with the surrogate mother. Thereafter, petitioner’s sister, her husband, and her daughter met with a road accident, leading to the demise of her husband and daughter. In 2018, twin daughters were born through surrogacy and from August 2019 to March 2021, petitioner, Respondent 1, and their daughters resided together. Due to issues between parties, Respondent 1 moved along with his daughters to his native place without informing petitioner. Respondent 1 stated that petitioner’s sister was in depression after her accident and with the help and support of her parents, she started residing with Respondent 1 and took care of his daughters and continued to do so even presently.
Petitioner filed a police complaint and thereafter, filed an application seeking custody of the daughters under the provisions of the Guardians and Wards Act, 1890 in the District Court at Thane. The application was transferred to the Court of Ad-hoc District Judge-1, Belapur and petitioner thereafter filed an interim application seeking interim visitation rights to her daughters, to which Respondent 1 opposed. Petitioner’s application seeking access and visitation rights was rejected by the impugned order dated 25-09-2023 and thus being aggrieved by rejection of her application, she filed the present petition.
Counsel for respondents submitted that petitioner’s sister, who was taking care of petitioner’s daughters, was and should be construed to be their biological mother of on the ground that she was the egg donor.
Analysis, Law, and Decision
The Court took note of the Surrogacy Agreement and observed that there was a specific provision made for effecting the signature of both the intending parents and the doctor, that both petitioner and Respondent 1, being recognised as the intending parents had signed and executed the Agreement. The Court compared and matched petitioner’s signature appearing in the Agreement with her signature in the verification clause of the present petition and on the Vakalatnama signed by her and thus, the Court opined that the signatures of petitioner did not differ at all. Therefore, the Court stated that the submission by the counsel that petitioner would have no right to maintain the custody application could not be accepted.
The Court opined that the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (‘the Guidelines’), issued by the Ministry of Health and Family Welfare, Government of India and the ICMR, National Academy of Medical Sciences (India) in 2005 were applicable in the present case. The Court stated that under Guideline No. 3.12.1 of the Guidelines and the Surrogacy Agreement, it was clearly stated that a 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. Thus, daughters born in the present case would be the daughters of petitioner and Respondent 1.
The Court observed that under Guideline No. 3.16.1, it was clearly stated that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and thus, petitioner’s sister could have no right whatsoever to intervene and claim to be the biological mother of the daughters. The Court stated that a strong prima facie case was clearly made out by petitioner for setting aside and quashing of the impugned order which was passed with complete non-application of mind and was clearly unsustainable and passing of such an order had benefited only Respondent 1. Thus, the Court allowed petitioner’s interim application for access and visitation.
The Court stated that the growing age of daughters had to be considered as they were five years old and in the custody of Respondent 1 and petitioner’s sister, they considered petitioner’s sister to be their mother. The Court stated that this issue must be addressed so that the balance of convenience was maintained until the custody application was determined. The Court stated that though petitioner’s parents had supported her sister’s decision to stay with Respondent 1 and his daughters due to her state of depression after losing her husband and daughter in the accident, this could not be a consideration for this Court to consider that petitioner’s sister was the biological mother of petitioner’s daughters merely because she was the egg donor.
The Court stated that in the present case, petitioner and Respondent 1 were the intending couple, the intending father and intending mother as defined under the Guidelines and the Surrogacy (Regulation) Act, 2021 and they qualified to be the biological father and the biological mother once their daughters were born. Further, they were the commissioning couple as defined under the Assisted Reproductive Technology (Regulation) Act, 2021. The limited role of petitioner’s sister was that of an oocyte donor, rather a voluntary donor and at the highest, she might qualify to be a genetic mother and nothing more, but by such qualification she would have no intending legal right to claim to be the biological mother of the daughters as the law did not recognize so.
The Court passed the following order as far as the issue of access and custody of the daughters until the custody application was decided was concerned:
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Respondent 1 was directed to give physical access and visitation rights to petitioner on every weekend and petitioner would also be granted access to speak to her daughters twice every week on Tuesday and Thursday on phone on video call;
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During the access and visitation on weekends, Respondent 1 shall ensure that even though petitioner’s sister might remain present at the outset, she would not interfere with the access and visitation rights granted to petitioner and rather cooperate in implementing the present order;
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Petitioner was warned and directed not to force herself on her daughters during the first two months period of her access and visitation, as the children were only five years old and would need some time to get accustomed to her presence in their lives. After the period of two months was over, petitioner could apply to the Trial Court for appointment of and assistance of the Child Counsellor to speak to her daughters and, if any, such application was made, the Trial Court shall pass appropriate orders thereon;
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Both, petitioner, and Respondent 1 were directed and warned not to cause any emotional trauma to the daughters by quarrelling in their presence and not to express any opinion in their presence so that the purpose for which access and visitation were granted by the Court was achieved;
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The Trial court was directed to dispose of the custody application as expeditiously as possible and in any event within a period of six months from the date of the present order positively, as any delay would be prejudicial and detrimental to petitioner’s case.
Thus, the Court allowed and disposed of the present petition.
[Shailja Nitin Mishra v. Nitin Kumar Mishra, 2024 SCC OnLine Bom 2602, decided on 13-08-2024]
Advocates who appeared in this case :
For the Petitioner: Ganesh K. Gole a/w Ateet Shirodkar, Bhavin Jain, Viraj Shelatkar, Kunjan Makwana, Ojas Gole, Akshay Bansode i/by Rahul Shelke.
For the Respondents: Kokila Kalra a/w Alifiya Manasawala; Hamid Mulla, AGP.
Amicus Curiae: Devyani Kulkarni
