An egg donor has no legal right on the child in a case of surrogate birth and cannot claim to be its biological parent, the Bombay high court held on Tuesday as it gave a woman access to her five-year-old twin daughters born out of surrogacy.
The verdict — which came in a case involving two sisters, one of whom donated an egg for her elder sibling’s pregnancy — is likely to become a landmark in the still-evolving field of surrogacy law.
The high court struck down a Thane court order which had refused the petitioner woman (the older sister) access to her twins as she was not the ‘biological mother’.
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“The limited role of the younger sister of the petitioner was that of an oocyte donor, rather a voluntary donor and at the highest, she may qualify to be a genetic mother and nothing more, but by such qualification she would have no intending legal right whatsoever to claim to be the biological mother of the twin daughters as the law clearly does not recognise so,” said the court.
Under India’s surrogacy laws, commercial surrogacy — where a couple or individual pays a woman money to carry a pregnancy to term — is banned. Instead, limited forms of surrogacy, such as altruistic surrogacy, are allowed.
Only altruistic surrogacy is allowed, however this position was not considered in the case since the laws back then were different. There were only surrogacy guidelines, the Act banning commercial surrogacy was not in effect. Altruistic surrogacy is where the couple only bears the medical expenses of the surrogate mother, and cannot pay her any money beyond reimbursing the medical expenses.
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The parents of the twins were married in November 2012 in Ranchi. As they were unable to conceive for a long period, in December 2018, doctors advised them to resort to altruistic surrogacy.
The woman’s younger sister, who was married and had a daughter of her own at the time, agreed to be the egg donor.
After the ovum was extracted from the younger sister, in April 2019, she met with an accident, which killed her husband and daughter, and left her disabled.
Meanwhile, the surrogacy was successful and the twins were born to the older sister in August 2019. The younger sister, having lost her own family, moved in with her older sister, her husband and the twins in Kharghar.
In March 2021, due to marital disputes, the husband of the older sister suddenly went to his native place, Ranchi, and took the twins with him, without informing his wife. The younger sister also moved in to his Ranchi home and started taking care of the twins.
On March 25, 2021, the older sister filed a police complaint and approached the district court under the Guardians and Wards Act, 1890 for the custody of the twin daughters. During the proceedings before the district court, the mother filed an interim application for visitation rights to her daughters. The district court rejected her application and denied the mother’s visitation rights, holding that she was not the biological mother of the twin daughters.
This prompted the mother to approach the high court where the counsel appearing on her behalf contended that “the daughters were now five years old and were addressing the younger sister of petitioner…as maa…and most importantly they are unable to recognise the petitioner, who is in fact their real mother.”
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The plea was heard by the court on August 1, and the hearing was concluded the next day. “Every passing day in this case is severely detrimental, traumatic and prejudicial to the right of the (mother) whereas every passing day as the daughters grow old is beneficial to (the father),” a single judge bench of justice Milind Jadhav observed.
“It has been a shocking revelation for me while hearing this petition,” the court remarked, setting aside the order of the district court.
The court therefore directed the husband to give physical access and visitation rights to the mother every weekend for three hours for two months initially, and access to speak to the daughters on phone calls twice every week. The court has also allowed the younger sister to be present during the physical access but prohibited her from interfering with the access.
“The order has been welcomed by the mother; she even went as far as calling it the God’s order. The area of surrogacy law and issues arising out of it are still nascent. This is a very important ruling,” advocate Ganesh Gole said, regarding the judgement. The advocate for the father could not be contacted for a response.
The case is that of surrogacy by IVF method. Eggs of the younger sister underwent IVF and were placed in a surrogate mother for the couple to be able to conceive.
IVF is one of the steps of having a baby through surrogacy, but, IVF can also be undergone by couples without a surrogate. In the case of surrogacy as well as IVF being undergone by the mother of the baby, eggs and sperm are harvested from both parents-to-be. The sperm is then used to fertilize the eggs in a lab. In the case of IVF, the embryo is then transferred back to the woman’s womb. However, in the case of surrogacy, the embryo is moved to the surrogate’s womb.
