Couple Moves Gujarat HC Seeking Custody Of Their 3 Day Old Child From Surrogate Mother Who Is In Judicial Custody

The intended parents of a 3-day-old child have moved to the Gujarat High Court seeking custody of the child from the surrogate mother, who is presently in judicial custody in connection with a criminal offence.

Essentially, the couple (biological parents) opted for surrogacy and entered into a surrogacy agreement with a 31-year-old divorcee woman to become a surrogate mother of their child.

However, during her pregnancy period, the surrogate mother was implicated in a criminal case and was sent to judicial custody in Sabarmati Central Jail.

Now, on June 20, 2022, there was natural labour pain to the Surrogate mother as the due date was coming nearer and she was taken to the Civil Hospital Ahmedabad considering her medical condition.

Now, the next day at around 12:30 PM, she delivered the baby girl at Civil Hospital Ahmedabad. Now as per the surrogacy agreement, it was decided that immediately after the birth of the child, the custody would be handed over to the present petitioners being intended parents.

The custody of the child was in fact taransferred to the intended parents, however, later on they were conveyed a message by the SP, Sabarmati jail that unless and until there is order of any court of law, the custody of the newly born female child would not be permitted to be continued with the parents.

Consequently, the custody of the child was taken from the intended parents, now against this, the parents have filed the instant plea before the Gujarat High Court, wherein they have averred thus:

"That it is absolutely unfortunate that newly born baby aged around 48 hours is getting punishment for no fault of hers and even though she is the child of the present petitioners, the present petitioners are being deprived of her legal custody for no valid reasons by the respondent authorities...neither the present petitioners nor the newly born baby are at fault for which both of them are Parted by the respondent authorities for no valid and legal reason. It is also unfortunate on part of the present petitioners that the present petitioners are directed to approach the court of law for getting the custody of the newly born child aged around about 48 hours."

Further, the petitioners have stressed that they are legally and validly holding the status of parents of Corpus i.e. Newly Born Baby Girl, and therefore, by virtue of the surrogacy agreement, they are entitled to continue the custody immediately after the birth of the child.

The plea further submits that even though the surrogate mother is not objecting to handing over the custody of the corpus to the present petitioners, however, the respondent authorities are not permitting her to hand over the custody of the corpus. The plea has been filed through Advocate Poonam M. Maheta.

Case title - Ena V. State and Gujarat and others