Mumbai: The Bombay High Court held on Tuesday that a sperm / egg donor has no legal right to the child and cannot claim to be the child’s biological parent. The court has allowed a woman visitation rights to her five-year-old twin daughters who were born through surrogacy.
The twins are living with the woman’s husband and her sister, who was the egg donor, the woman’s plea said. She added that her husband claimed that since his sister-in-law was the egg donor, she had a legitimate right to be called the biological parent of the twins and that she had no right over the children.
Rejecting the contention, the court said that although the sister was the egg donor, she has no legitimate right to claim that she is the biological parent of the twins. The younger sister’s role is that of an egg donor, rather a voluntary donor and at the highest, she may qualify to be a “genetic mother” and nothing more.
Advocate Devyani Kulkarni, who was applied as Amicus Curiae to assist the court, submitted that since the said Surrogacy Agreement was signed in 2018, it would be regulated by the Indian Council of Medical Research in 2005. The Surrogacy Act was enacted only in 2021.
The court noted that as per the 2005 guidelines, the donor and the surrogate mother have to relinquish all parental rights. Hence, the twins would be the daughters of the petitioner wife and respondent No 1 husband.
“Under the guideline, it is clearly stated that the sperm / oocyte (egg) donor shall not have parental right or duties in relation to the child and in that view of the matter, the younger sister of the petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters,” Justice Milind Jadhav said.
The couple were unable to conceive naturally hende the wife’s sister volunteered to donate her eggs. In December 2018, the babies were conceived in a surrogate woman and the twin girls were born in August 2019. The sister met with an accident in April 2019 in which her husband and daughter were killed.
The couple and twins lived together from August 2019 to March 2021. However, following a marital discord, the husband shifted to another flat with twins in March 2021, without informing his wife. He claimed that the wife’s sister, who was in depression filling her family’s untimely death, started residing with them to take care of the twins.
The wife filed a police complaint. She also filed an application with the local court seeking visitation rights, which was rejected in September last year. She challenged this before the HC contending that her sister was only the egg donor and not the surrogate mother, hence she has no legal right or role in the lives of the twins.
In a detailed order, the HC noted that the Surrogacy Agreement was signed between the intending parents, the surrogate mother and the doctor. The agreement recognises the couple as the intending parents. “At least to a naked eye, there is no ambiguity whatsoever while observing and even concluding that it is the petitioner along with the respondent No 1 (husband) who signed the Surrogacy agreement as intending parents,” a justice Jadhav added.
Bombay High Court Grants Bail To Builder In Navi Mumbai Housing Fraud Case
Quashing the lower court’s order, Justice Jadhav said that it was passed without proper application of mind. The court also directed the husband to give physical access and visitation right of the twins to the wife every weekend for three hours.
