Merely Donating Eggs Or Sperm Does Not Make Donor A Biological Parent Of Child Born Through IVF: Bombay High Court

In a significant judgment, the Bombay High Court on Tuesday held that merely donating eggs or sperm by a person doesn't entitle them to claim any parental rights on the children born through the In vitro fertilization (IVF) treatment.

Single-judge Justice Milind Jadhav pronounced the verdict while dismissing an argument of a woman, who "voluntarily" donated her oocyte (eggs) for her sister and brother-in-law, who couldn't conceive naturally, and later claimed she was the "biological" mother of the twin girls born through surrogacy.

The woman donated her eggs and there was a 'Surrogacy Agreement' between the intending parents (the couple) and a third woman, who bore the twins. In the interregnum, the woman lost her own husband and daughter in a tragic accident and as a result, the couple brought her to their house since she was depressed. However, things didn't work well between the couple, the husband left the wife and took away the twins and started living with the wife's sister (the one who donated eggs). The twin girls were 2 years of age when the husband took them away from their mother and were at present 5 years old when they recognised the wife's sister (egg donor) as their mother.

Referring to the National Guidelines for Accreditation, Supervision and Regulation of ART (Assisted Reproductive Technology) Clinics in India, enacted in 2005, the judge noted that it clearly states that the sperm/oocyte donor shall not have any parental right or duties in relation to the child.

"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 as argued. The submissions on behalf of the husband that his wife's younger sister being the oocyte donor is the biological mother stands rejected outrightly in view of the settled position in law on the basis of the Guidelines and the Surrogacy Act enacted subsequently," Justice Jadhav said.

The donor of the egg or the oocyte does not figure in the Surrogacy Act signed between the couple, the surrogate mother and the doctor and thus the donor has no legal or contractual right whatsoever, the judge pointed out.

"The limited role of the younger sister of Petitioner is that of an oocyte 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 recognise so," the judge held.

The bench was seized with a plea filed by a woman, who challenged a trial court's order denying her visitation rights and access to her twin daughters, born through surrogacy. Since the petitioner woman couldn't conceive, her younger sister donated her eggs to the petitioner and her husband to complete the IVF treatment. However, now the younger sister, who lost her own husband and daughter, lived with the petitioner's husband and claimed to be the biological mother of the twin daughters born to the petitioner through surrogacy.

Advocate Ganesh Gole, appearing for the petitioner, vehemently argued that since the twin girls are of growing age, the petitioner needs to be given visitation rights. He highlighted the fact that the girls consider the younger sister of the petitioner as their mother.

"Admittedly, the younger sister of Petitioner being the gamete or the oocyte donor has absolutely no legal right whatsoever in law to claim that she is the biological mother of the twin daughters even though she may be staying with the petitioner's husband, in any capacity. Marriage of the Petitioner with the respondent (husband) is admittedly in subsistence. Law proceeds on the basis of Regulations, Rules, Guidelines and Statutes which are in place, rather than on emotional considerations of parties," Justice Jadhav underscored.

The bench further refused to consider the argument put forth by the petitioner's sister that even her parents have supported her decision to live with the respondent as his wife and biological mother of the twins, especially in view of the fact that she lost her only child and husband in a tragic accident and since then was under depression.

"This cannot be a consideration for this Court to consider that the younger sister of the Petitioner is the biological mother of the twin daughters merely because she is the egg donor or be sympathetic to the situation. A case has to be decided on law, rather applicable laws no matter how disagreeable and painful the decision or direction of the Court may be. Equally, in the case before hand the twin daughters' welfare will also have to be protected," Justice Jadhav made it clear.

"In that view of the matter, a strong prima facie case is clearly made out by the Petitioner (wife) for setting aside and quashing of the impugned order which is passed with complete non-application of mind and is clearly unsustainable. Passing of such an order has benefitted only the husband," the judge said.

With these observations, the judge quashed and set aside a lower court's order denying the petitioner visitation rights. The bench, therefore, granted visitation rights and access to the twin daughters.

Appearance:

Advocates Ganesh Gole, Ateet Shirodkar, Bhavin Jain, Viraj Shelatkar, Kunjan Makwana, Ojas Gole, Akshay Bansode and Rahul Shelke appeared for the Petitioner.

Advocates Kokila Kalra and Alifiya Manasawala represented the Husband.

Advocate Devyani Kulkarni was appointed as the Amicus Curiae.

Additional Government Pleader Hamid Mulla represented the State.

Case Title: Shailaja Nitin Mishra vs Nitin Kumar Mishra (WPST/6772/2024)

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