Source: Bombay High Court  

Why in News? 

The Bombay High Court has ruled that donating eggs or sperm does not grant parental rights over children born via IVF. This decision came after a woman, who had donated eggs to her sister and brother-in-law, claimed maternal rights over the twins born through surrogacy. The court clarified that parental rights are not conferred solely based on genetic contribution but involve legal and contractual considerations. 

• Justice Milind Jadhav held in the matter of Shailaja Nitin Mishra v. Nitin Kumar Mishra.   

What was the Background of Shailaja Nitin Mishra v. Nitin Kumar Mishra? 

• The petitioner (wife) and respondent no. 1 (husband) are a legally married couple whose marriage is still in effect. 
• The couple was unable to conceive naturally due to medical issues, so they pursued surrogacy with the wife's younger sister as an egg donor. 
• A surrogacy agreement was signed on 30th November 2018 between the couple, a surrogate mother, and a doctor at a fertility clinic in Bangalore. 
•  Twin daughters were born through surrogacy on 25th August 2019. 
•  In April 2019, before the birth, the wife's sister (egg donor) was in a serious accident that killed her husband and child and left her disabled. 
• From August 2019 to March 2021, the couple lived together with their twin daughters. 
• In March 2021, the husband took the daughters and moved to Ranchi without informing the wife.  
  • The wife's sister began living with them and caring for the children. 
• The wife filed a police complaint and then a custody application in court seeking custody of the daughters. 
• The wife also filed an interim application seeking visitation rights, which was rejected by the trial court in September 2023. 
• The wife has now filed this writ petition challenging the rejection of her interim visitation rights application. 
• The twin daughters are now 5 years old and reportedly recognize the wife's sister as their mother. 
• The husband and wife's sister argue that the sister, as egg donor, should be considered the biological mother of the children. 

What were the Court’s Observations? 

• The National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, enacted in 2005, are applicable to this case. 
• As per Guideline 3.12.1, a child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock and with the consent of both spouses. 
• Guideline 3.16.1 clearly states that the sperm/oocyte donor shall not have any parental right or duties in relation to the child. 
• The court stated that the younger sister of the Petitioner, being the oocyte donor, has no legal right to claim she is the biological mother of the twin daughters. 
• The Surrogacy Agreement is a contract between the intending parents (Petitioner and Respondent No.1), the surrogate mother, and the Doctor.  
  • The egg donor is not a party to this agreement. 
• The impugned order of the trial court was passed with complete non-application of mind and is clearly unsustainable. 
• The limited role of the Petitioner's younger sister is that of an oocyte donor, and at most, she may qualify as a genetic mother, but this gives her no legal right to claim to be the biological mother. 
• The Petitioner and Respondent No.1 are the intending couple as defined under the Guidelines and the Surrogacy Act, and therefore qualify to be the biological father and mother of the twin daughters. 

What is Surrogacy? 

• Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s). 
• A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s). 
• Surrogacy, which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy is often referred to as Altruistic surrogacy. 
• Surrogacy undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage is termed Commercial surrogacy. 

What is a Surrogacy Agreement? 

• A surrogacy agreement is a legal contract that defines the terms and conditions between the intended parents and the surrogate mother who carries and delivers a child for the intended parents.  
• This agreement includes details about medical procedures, parental rights, and financial arrangements. 
• The parties declare their intent to enter a surrogacy agreement, with the Surrogate agreeing to carry and give birth to a child for the Intended Parents. 
• This agreement sets forth the rights, responsibilities, and obligations of both the Surrogate and the Intended Parents throughout the surrogacy process and thereafter. 
• The Surrogate (and spouse, if applicable) hereby affirms and acknowledges the full parental rights of the Intended Parents to any child(ren) resulting from this surrogacy arrangement. 
• The Intended Parents express their unequivocal intention to assume all parental rights and responsibilities for any child(ren) born because of this surrogacy arrangement. 
• The agreement shall specify the compensation to be provided to the Surrogate, including enumeration of covered expenses such as living costs and medical expenses not otherwise insured. 
• A financial mechanism (e.g., escrow account or trust) shall be established to facilitate payments from the Intended Parents to the Surrogate in accordance with the terms herein. 
• The agreement shall delineate health insurance coverage for the Surrogate, the child(ren), and the Intended Parents throughout the surrogacy process and immediate postpartum period. 
• The parties agree to a communication protocol, including frequency and method of contact, to be maintained throughout the pregnancy. 
• The extent of the Intended Parents' involvement in medical decision-making during the pregnancy shall be clearly defined herein. 
• The Surrogate agrees to adhere to specified health and lifestyle choices throughout the pregnancy, including dietary restrictions, exercise regimens, travel limitations, and abstention from high-risk activities. 
• The agreement shall provide resolutions for potential contingencies, including multiple pregnancies, selective reduction, chromosomal abnormalities, and health risks to the Surrogate. 
• The parties agree to abide by mutually agreed-upon privacy protocols, including limitations on social media disclosures related to the surrogacy arrangement. 
• The agreement shall specify consequences for breach of contract by either party, including potential remedies and dispute resolution mechanisms.