Surrogate Vs Biological mother – Litigation for Custody of twin minor daughters
Petitioner No.1 surrogate mother is the wife of Respondent No.1 and elder sister of the Respondent No.2. The respondent no.2 sister is married and has one daughter. The petitioner was unable to conceive, and the Gynecologist advised them “altruistic surrogacy”. The respondent no.2 donated her egg in January 2019, as per the Surrogacy agreement dated 30.11.2018.
In the road accident of 21.4.2019, the husband and daughter of the respondent no.2 died, and she survived with disability.
On 25.8.2019, twin daughters were born through surrogacy to the petitioner no.1. The petitioner, respondent no.1 and their twin daughters resided together at Navi Mumbai.
On 25.3.2021, the respondent no.1 along with twin minor daughters moved to Ranchi to his native place without informing the petitioner when she was at her workplace. Respondent no.2 also moved to Ranchi and started residing with Respondent no.1 with twin minor daughters.
On 9.4.2021, the petitioner filed a police complaint and filed Civil Misc. Application under the Guardians and Wards act, 1890, in the District Court, Thane for custody of twin minor daughters who are now five years old.
On 17.3.2022, the petitioner filed interim application for visitation rights. This was rejected by the order dated 25.9.2023.
in respect of custody and visitation to twin minor daughters by surrogate mother against biological mother may be useful for you in such cases in future
Surrogacy (Regulation) Act, 2021. Assisted Reproductive Technology (Regulation) Act, 2021.
Parental right or duty of biological mother to the child born out of surrogacy
Section 31(2) of the Surrogacy Act that the donor shall relinquish all parental rights over the child or children which may be born from his or her gamete.
The Guidelines of 2005 and Act of 2021 are clear that the intending parents are “biological parents” of the “surrogate child”. The child born through surrogacy is the legitimate child of surrogate mother for all rights and purposes. The donor will have no parental rights.
However, considering the facts of the case and that the petitioner no.1 is working mother, the High Court passed order for access until custody application is decided.
Judgment dated 13.8.2023 of the Bombay High Court in W.P. (St) No.6772 of 2024 of BHC (Shailja Nitin Mishra Vs. Nitin Kumar Mishra and another)
