Justice Milind N. Jadhav emphasized that under the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India (2005 Guidelines), an egg donor may be considered a genetic mother but cannot legally claim the status of a biological mother.
MUMBAI: The Bombay High Court ruled on Tuesday (13th Aug) that an egg donor in a surrogacy arrangement cannot be recognized as the biological mother of the children, and therefore has no parental rights.
Justice Milind N. Jadhav emphasized that under the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India (2005 Guidelines), an egg donor may be considered a genetic mother but cannot legally claim the status of a biological mother.
“The petitioner’s younger sister was merely an oocyte donor, perhaps qualifying as a genetic mother at most, but this does not grant her any legal rights to claim she is the biological mother of the twin daughters, as the law does not recognize such a claim.”
the court observed
As a result, the Court granted visitation rights to the mother of two children, while ruling that her younger sister, who donated the eggs, has no legal claim to be recognized as the biological mother.
The ruling stated: “Guideline No. 3.16.1 clearly indicates that the sperm or oocyte donor shall not possess any parental rights or obligations in relation to the child. Thus, the petitioner’s younger sister cannot claim any legal right to be recognized as the biological mother of the twin daughters.”
Background
The case involved a petition from a woman challenging the denial of her application for access and visitation rights to her twin daughters, born through altruistic surrogacy on August 25, 2019.
The couple, who married in 2012, opted for surrogacy after struggling with infertility due to medical conditions. The eggs used in the surrogacy were donated by the woman’s younger sister.
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In April 2019, tragedy struck when the petitioner’s sister, her husband, and their daughter were involved in a fatal road accident, resulting in the deaths of the husband and daughter. Although the sister survived, she was left disabled, adding complexity to the family situation.
Initially, the family lived together in Navi Mumbai, but tensions arose, and on March 25, 2021, the husband moved to Ranchi with the daughters without informing the petitioner. He claimed that the wife’s sister had relocated to Ranchi to care for the children.
The petitioner, aggrieved by her husband’s actions, filed a police complaint and sought custody of her daughters through a civil application. She also filed an interim application for visitation rights, which the lower court rejected in September 2023, leading her to appeal to the High Court.
“The daughters, now five years old, refer to the petitioner’s younger sister as ‘maa’ and are unable to recognize the petitioner, who is actually their biological mother,” argued the counsel representing the petitioner in the High Court.
Every passing day in this case causes significant harm, trauma, and prejudice to the mother’s rights, while simultaneously benefiting the father as the daughters grow older,” observed Justice Milind Jadhav, setting aside the district court’s order.
During the High Court hearing, advocate Ganesh K. Gole, representing the petitioner, argued that the lower court’s decision was flawed and based on incorrect facts. He emphasized that the court had mistakenly concluded that the younger sister was the surrogate mother, whereas she was merely an egg donor.
The mother has welcomed the decision, even describing it as a divine order. Surrogacy law and the issues surrounding it are still in their early stages, making this a significant ruling,” remarked advocate Ganesh Gole regarding the judgment.
Gole contended that both the donor and the surrogate mother must relinquish all parental rights. He argued that the daughters were being raised to believe the egg donor was their mother, which he described as a travesty of justice.
Advocate Kokila Kalra, representing the husband, focused on the validity of the surrogacy agreement dated November 30, 2018, arguing that the petitioner had no rights under the agreement. She further asserted that the petitioner had abandoned her matrimonial home and exhibited erratic behavior following her husband’s diagnosis of a brain tumor. Kalra also argued that the younger sister, as the egg donor, should be recognized as the biological mother of the twins.
Amicus curiae Devyani Kulkarni pointed out that the Surrogacy (Regulation) Act, 2021, is not retroactive, and therefore the case should be governed by the 2005 Guidelines, which were in effect when the twins were born.
She cited Rule 3.5.5 of the guidelines, which states that “The sperm/oocyte donor shall not have any parental rights or duties in relation to the child.”
The Court agreed with the amicus curiae, affirming that the 2005 Guidelines apply to surrogacies conducted before the enactment of the Surrogacy Act. As per these guidelines, the younger sister may be considered a genetic mother but does not have legal rights as a biological mother.
The Court rejected the husband’s argument regarding the surrogacy agreement, noting that it was signed solely by the petitioner and her husband, with no involvement or rights for the egg donor.
Consequently, the Court granted the petitioner interim access to her daughters, allowing visitation every weekend and ensuring regular communication between them. The Court also instructed the husband to facilitate the petitioner’s access to the children and warned both parties against causing emotional harm to the children.
READ ALSO: Surrogate Mothers Also have “Right to Maternity Leave” : Orissa HC
Additionally, the Court ordered the prompt resolution of the ongoing custody application within six months, warning that any delay would be detrimental to the petitioner’s case.
The mother was represented by advocates Ganesh K. Gole, Ateet Shirodkar, Bhavin Jain, Viraj Shelatkar, Kunjan Makwana, Ojas Gole, Akshay Bansode, and Rahul Shelke. Advocates Kokila Kalra and Alifiya Manasawala represented the husband, with Additional Government Pleader Hamid Mulla representing the State, and Advocate Devyani Kulkarni serving as Amicus Curiae.
