Egg donor in surrogacy birth cannot claim rights of biological mother: Bombay High Court

The Bombay High Court on Tuesday held that an egg donor in a surrogacy birth cannot claim to be the biological mother of the children and does not possess any parental rights. .Single-judge Justice Milind N Jadhav emphasised that under the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India of 2005 (2005 Guidelines), an egg doner may qualify to be a genetic mother but cannot claim any legal rights of a biological mother.Hence, it granted visitation rights to the mother of two children while ruling that her younger sister, who was the egg doner, cannot claim to be the biological mother."Under Guideline No.3.16.1, it is clearly stated that the sperm / oocyte donor shall not have any parental right or duties in relation to the child and in that view of the matter, the younger sister of petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters," the Court said..The Court was hearing a petition filed by a woman challenging the rejection of her application for access and visitation rights to her twin daughters, born through altruistic surrogacy on August 25, 2019.The couple, married since 2012, had opted for surrogacy after facing infertility due to medical issues. They used the eggs donated by the woman’s younger sister.Tragedy struck in April 2019 when the petitioner’s sister, her husband and their daughter were involved in a road accident, resulting in the deaths of her husband and daughter. Although her sister survived, she was left disabled, leading to a complex family dynamic.Following the accident, the family initially lived together in Navi Mumbai, but tensions escalated. On March 25, 2021, the husband moved to his native Ranchi with the daughters without informing the petitioner. He claimed that the wife's sister had moved to Ranchi to care for the children.Aggrieved by the husband's actions, petitioner filed a police complaint and sought custody of her daughters through a civil application.She also filed an interim application for visitation rights, which was rejected by the lower court in September 2023, prompting her to approach the High Court..During the hearing before High Court, advocate Ganesh K Gole, representing petitioner, argued that the lower court's decision was based on complete non-application of mind and factual inaccuracies. He asserted that the court had erroneously concluded that the younger sister was the surrogate mother though she was merely an egg donor. “The donor and the surrogate mother must relinquish all parental rights,” Gole argued. The daughters were being raised to view the egg donor as their mother and that would be travesty of justice, the Gole contended.He urged the court to consider the potential harm to petitioner's bond with her daughters, claiming that “every passing day strengthens the respondent’s position while harming the petitioner’s ability to bond.”.However, advocate Kokila Kalra, representing husband, focused her arguments on the validity of the surrogacy agreement dated November 30, 2018. She contended that the petitioner had no rights under the agreement. “She has no right whatsoever to even file the custody application as no right accrues to her from the said agreement,” Kalra argued. Kalra further claimed that the petitioner had abandoned her matrimonial home and exhibited erratic behavior following her husband’s diagnosis of a brain tumor..Kalra also asserted that petitioner’s younger sister, as the egg donor, should be recognized as the biological mother of the twins. “The younger sister of the petitioner who is now taking care of the twin daughters is and should be construed to be the biological mother,” it was argued. .Amicus curiae Devyani Kulkarni highlighted that the Surrogacy (Regulation) Act, 2021, is prospective and does not apply retrospectively.Hence, the case should be governed by the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India, 2005, which were applicable when the twins were born. She highlighted Rule 3.5.5 of these guidelines to argue that,“The sperm/oocyte donor shall not have any parental rights or duties in relation to the child.” Hence, the egg donor cannot claim parental rights, it was submitted by the Amicus. .The Court concurred with the amicus curiae, affirming the applicability of the 2005 Guidelines for surrogacies conducted prior to the Surrogacy Act’s enactment. As per the guidelines, the younger sister may qualify as genetic mother but will not be entitled to legal rights as a biological mother.“The limited role of the younger sister of the petitioner is that of an oocyte (egg) 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 recognize so,” the Court said..The Court also rejected the husband's arguments regarding the surrogacy agreement on the ground that the agreement was signed solely by the petitioner and the husband. “The donor of the egg/oocyte does not figure therein and has no legal or contractual right whatsoever,” the Court ruled..Hence, it granted the petitioner interim access to her daughters, allowing visitation every weekend and facilitating regular communication between them. The Court mandated that the husband should ensure the petitioner's access to the children.The Court also warned both parties to avoid causing emotional trauma to the children..Further, the Court ordered the expeditious disposal of the ongoing custody application within six months, cautioning that any delay would be “prejudicial and detrimental” to the petitioner’s case. .Advocates Ganesh K Gole, Ateet Shirodkar, Bhavin Jain, Viraj Shelatkar, Kunjan Makwana, Ojas Gole and Akshay Bansode and Rahul Shelke appeared for mother. Advocates Kokila Kalra and Alifiya Manasawala for the husband.Additional Government Pleader Hamid Mulla represented the State.Advocate Devyani Kulkarni served as Amicus Curiae. [Read Judgment]