BOMBAY HIGH COURT HOLDS INDIVIDUALS WHO DONATE EGGS OR SPERM DO NOT HAVE PARENTAL RIGHTS OVER CHILDREN CONCEIVED THROUGH IVF

A two-Judge Bench of the Supreme Court comprising of Justice Milind N. Jadhav passed a Judgment dated 13-08-2024 in the matter of Shailja Nitin Mishra vs. Nitin Kumar Mishra and Anr. Writ Petition (ST) No. 6772 of 2024, and held that the Petitioner and the Respondent No. 1 are the intending couple, identified as the intending father and mother under the Guidelines and the Surrogacy (Regulation) Act, 2021 (Surrogacy Act), as noted by the Trial Court in its Order dated 25.09.2023. Therefore, once the twin daughters are born, they are recognized as the biological parents and also qualify as the commissioning couple under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).

FACTS:

1)  That the aforesaid Petition was filed before the High Court of Bombay (High Court) by one, Shailja Nitin Mishra (Petitioner) against one, Nitin Kumar Mishra and Anr. (Respondents), seeking expeditious disposal of the Civil Misc. Application. By Order dated 26.07.2023, further, the High Court directed that the Interim Application be determined expeditiously within eight weeks from the date of the Order, with further direction to endeavour to dispose of the main matter for custody as early as possible.

2) The Petitioner, Shailja Nitin Mishra, is the legally wedded wife of Respondent No. 1, Nitin Kumar Mishra. They were married in 2012 in Ranchi, Jharkhand. Due to medical reasons, the couple could not conceive naturally and opted for altruistic surrogacy with the Petitioner’s younger sister who was the egg donor. The surrogacy procedure was carried out, and twin daughters were born in August 2019. However, disputes arose between the couple, leading to the Respondent taking the twin daughters to his native place, Ranchi, without informing the Petitioner. The Respondent No. 1 was later joined by the Petitioner’s sister who was the egg donor and who subsequently started living with the Respondent No.1 alleging that she was the real mother of the twins.

3) The Petitioner filed a Police Complaint dated 09.04.2021 and subsequently a Civil Misc. Application No. 302 of 2021 seeking custody of the daughters under the Guardians and Wards Act, 1890. She also sought interim visitation rights through an Application, which was denied by the Court. The Petitioner, aggrieved by the delay and the denial of her interim Application, filed a Writ Petition in the High Court seeking expeditious disposal of her Application and custody of her daughters. The case highlights the complexities arising from surrogacy, the legal rights of parents, and the welfare of the children involved.

TRIAL COURT:

The Court initially observed that the Petitioner and Respondent No. 1 are the intending couple as defined under the Guidelines and the Surrogacy Act. The Trial Court, in its order, recognized them as the intending father and mother. Consequently, once the twin daughters were born, they were deemed the biological father and mother. Furthermore, the Court acknowledged that the couple met the definition of the commissioning couple under the ART Act.

The Trial Court had earlier denied the Petitioner’s request for interim visitation rights, leading to her filing a writ petition in the High Court. The High Court, while considering the petition, directed that the Interim Application be decided expeditiously within eight weeks, with an emphasis on resolving the main custody matter as quickly as possible. This highlighted the Court’s focus on ensuring a prompt and fair resolution of the custody dispute.

ISSUE:

a) The primary issue of fact in this case revolves around the custody of the twin daughters born through altruistic surrogacy. Specifically, the dispute concerns whether the Petitioner, Shailja Nitin Mishra, as the intending mother and legal wife of Respondent No. 1, is entitled to the custody of the children, especially after the Respondent took the children to Ranchi without her consent.

b) Additionally, the case examines whether the Petitioner’s rights as the biological mother, under the Surrogacy and ART Acts, were adequately considered by the lower court, which had earlier denied her interim visitation rights. The matter also raises concerns about the timely resolution of the custody dispute to ensure the welfare of the children.

OBSERVATION:

The Court observed that both the Petitioner and Respondent No. 1 are recognized as the intending parents under the Guidelines and the Surrogacy Act. They were acknowledged by the Trial Court as the intending father and mother, which legally qualifies them as the biological parents of the twin daughters born through surrogacy.

The High Court noted that the Petitioner and Respondent No. 1 also qualify as the commissioning couple under the ART Act. This legal recognition further solidifies their status as the rightful parents of the children.

The Bench expressed concern over the delay in resolving the custody dispute. Recognizing the importance of the matter, it highlighted the need for the expeditious disposal of the Petitioner’s Civil Misc. Application and the main custody matter, emphasizing the urgency given the welfare of the children.

The denial of interim visitation rights to the Petitioner was a critical observation. The Court’s directive to resolve the interim Application within eight weeks underscores the need to address the immediate concerns of the Petitioner regarding access to her children while the main custody case is pending.

The Court’s observations consistently pointed to the importance of the children’s welfare. The directive for an early resolution of the custody dispute reflects the Court’s focus on ensuring that the children’s best interests are prioritized in the legal proceedings.

CONCLUSION:

Based on the aforementioned facts, the Court concluded that the Petitioner, as the legally recognized intending mother under the Surrogacy and ART Acts, has valid grounds for seeking custody of the twin daughters. The Court emphasised the need for a prompt resolution of the custody dispute, instructing the lower court to expedite the interim Application and the main custody matter to safeguard the welfare of the children.

The Court’s directions underscore the recognition of the Petitioner and Respondent No. 1 as the biological parents and stress the importance of addressing the legal and emotional complexities involved in such surrogacy cases without unnecessary delays.

 

 

Sakshi Raghuvanshi

Legal Associate

The Indian Lawyer