Embassy Declines Surrogate Child's Visa, High Court Declares Single Biological Father As "Sole Guardian", Grants Right To Remove Child From India

The Punjab & Haryana High Court has recently allowed a habeas corpus plea, declaring petitioner no 2, the biological father as the sole guardian of his surrogate child (petitioner no 1).

Petitioner no 2 had approached a single bench of Justice Anupinder Singh Grewal, seeking to be declared as the sole legal guardian of his 4-year-old surrogate child. It was submitted that he was living in Australia and had applied for a visa for his child. It was argued that the embassy had rejected the visa application on the grounds that the laws on surrogacy regarding single parents were unclear until 2021, and thus a declaration from a competent court would be required in such regard.

Upon hearing the plea and granting relief to the petitioners, Justice Grewal observed, "The technicalities and rigmarole of the law would be subservient to the best interest and welfare of the child particularly when the Court is exercising parens patriae jurisdiction. It is the moral duty of a constitutional Court to adapt to the exigencies of the situation as the law is not static but dynamic and keeps evolving."

In observing that Indian courts had recognised surrogacy arrangements even prior to the enactment of the Surrogacy (Regulation) Act, 2021, the Bench relied on the Supreme Court case of Baby Manzi Yamda v Union of India (2008) which had directed the Central Government to expedite the process of issuing passport and relevant documents to a surrogate child for her travel as a matrimonial discord had arisen between the biological parents. It had also observed that the prospective parent may be a single male, or a male homosexual couple. 

The bench placed further reliance on the Supreme Court's case in Nil Ratan Kundu v. Abhint Kundu (2008), which had observed that while dealing with custody cases of minor children, the Court is neither bound by statutes, strict rules of evidence, procedure or precedents. "It is a human problem which is required to be solved with a human touch," the Court had held. 

Petitioner no 1, the surrogate child, was born in 2019 after Petitioner no 2 entered into an agreement with the surrogate mother. Being a permanent resident of Australia, petitioner no 2, as the biological father had intended to take the child along to Australia with him.

It was argued that in spite of having a valid Indian passport, the Australian Embassy was not granting a visa to the child, since they had alleged that the child being born out of a surrogacy agreement with a single commissioning parent made the legalities of the arrangement unclear under Indian law. 

Accordingly, the petitioners submitted that the embassy authorities had directed them to obtain a declaration from the court confirming that petitioner no 2 had full legal custody of the child, the right to remove him from India, and the right to determine where the child should live. It was also required of the petitioners to obtain a declaration certifying that no other parties involved in the surrogacy arrangement, including the person who donated the egg, had any legal right to the child.

Petitioners showed that neither the surrogate mother nor her husband objected to the custody and stated that they had no intention to claim any custodial or parental rights of the petitioner at any time in future.

Considering the submissions, the Court held that it was trite that when the issue for consideration before the court involves the rights of a child, the court assumes parens patriae jurisdiction and it would be of paramount importance for the Court to safeguard the interest of the child keeping in view his welfare and issue necessary directions in that regard. 

The bench also referred to Vivek versus Romani Sir (2017), where it had been held by the Supreme Court that "the best interest of the child would be foremost consideration and the optimal growth and development of the child would override other considerations."

Justice Grewal also referred to the International Bill on Human Rights comprising of the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966  and the International Covenant on Economic Social and Cultural Rights,1966  which had recognized procreation and family as basic human rights of the individual and that the State shall take appropriate measures to safeguard these rights.

Justice Grewal further noted that although several writ petitions were pending before the Supreme Court challenging the Surrogacy (Regulation) Act, 2021 on the ground that it does not permit single men and unmarried girls to avail the arrangement of surrogacy, the present case would not be affected by the status of those pleas, since the child herein had been conceived in 2019.

"The provisions of the Surrogacy (Regulation) Act 2021 would not come in the way of the declaration being sought by petitioner No.2 for the reason that the Act itself provides that it is applicable prospectively and it has come into force in the year January, 2022. Section 53 thereof provides that it will not be applicable to the existing surrogate mothers by providing the gestation period of 10 months from the date of its enactment i.e. 25.01.2022," the bench observed.

Consequently, the bench opined there was not any legal impediment to the issuance of the declaration as sought by the father in the best interest of the child.

The Court also considered the question of the wellbeing of the child who was currently living with his 60-year-old paternal grandmother. "This court would not allow a situation where a child would be destitute, abandoned or left to fend for himself. The petitioner, who is the single parent, would be in a better position to provide education, material comforts and moral support for the proper upbringing of the child. The education and upbringing of the child would not only shape the future of the child but that of the nation as well," it added.

Stating that it is necessary to impart proper education to children and inculcate moral values to enable them to grow as responsible citizens of the country, "A child has also been called the 'father of the man", Justice Grewal concluded.

In the light of the above, the relief as sought for was granted.

Appearance: Gagan Oberoi and  Avna Vasudeva Advocates for the petitioners

Tanu Bed, Advocate (Amicus curiae),

Sumit Kumar and Vibhu Agnihotri Advocates

 Shweta Nahata. Advocate for respondents No.1 & UOI.

Luvinder Sofat, DAG, Punjab

Jaya Kumari. Advocate for respondents No 4 & 5.

Citation: LiveLaw 2023 (PH) 241