"No Law Which Bars Parties From Entering In Gestational Agreements": Delhi Court Declares Couple As Biological Parents Of Child Born Out Of Surrogacy

While declaring a couple as legal and biological parents of a child born out of a surrogacy arrangement, a Delhi Court has observed that there is no law in the Country which bars par­ties from entering into gestational agreements.

Civil Judge Chitranshi Arora of the Saket Courts analyzed the law regarding surrogacy in India and observed that while there is no statute which governs surrogacy in the country, however, the guidelines issued by the ICMR do regulate surrogacy arrangements in India.

"It clearly provides that the child will be considered as the legitimate child of the couple born within the wedlock and with all the right of parentage, support and inheritance," the Court said.

The Court was dealing with a suit filed by the plaintiff couple against the defendants seeking the relief of declaration that they were the legal parents of the baby girl and that the defendants had no parental rights over her.

The plain­tiff couple had opted for Gestational Surrogacy and entered into a Gestational surrogacy agreement dated with the defendants wherein the Defendant no. 1 agreed to act as a surrogate mother with the consent and approval of her husband. As per the said agreement, the surrogate mother would just be a gestational carrier and not bio­logically related to the child.

It was further agreed that the defendants shall have no say and shall have no objections with respect to the intended father and mother being the parents and the sole custodian of the child so born out of the said surrogacy agreement.

The defendant no. 1 gave birth to a baby girl through the IVF process under the surrogacy agreement and the defendants had ful­filled their obligations and gave the custody of the baby girl to the plaintiffs.

While there was no denial that the plaintiffs were the parents of the baby girl but they had an apprehension that in future the defendant may claim the custody of the baby girl. There­fore, the plaintiffs had filed the suit seeking declaration and injunc­tion in their favour.

"…it is clear that there is no law which bars par­ ties from entering into such gestational agreements, meaning thereby that the agreement entered between the parties is a legal and executable agreement, if the conditions of the Indian Contract Act, Section 10 are met. In the instant case, all the parties were compe­ tent to contract and there is no objection by the defendants as to the agreement. Therefore, the agreement into between the parties in this case is legal and executable," the Court said.

Perusing the pleadings in the matter, the Court was of the opinion that the plaintiff couple was entitled to a decree under the provision of Order 12 Rule 6 of CPC.

While declaring plaintiff couple as the legal and biological parents of the baby girl, the Court also restrained the defendants from acting in contravention to the terms of the Gestational Surrogacy Agreement.