Surrogacy Regulation Act, 2021 Does Not Contemplate Retention Of Newly Born Child's Custody By Surrogate Mother For Breastfeeding: Gujarat High Court

The petitioners in this matter were a married couple who had decided to go for surrogacy in order to become parents. Accordingly, they entered into the agreement with a woman who agreed to become a surrogate mother for the couple. It was decided that immediately after the birth of the child, the custody of the child would be handed over to the petitioners i.e. the intended parents. Before the due date of the delivery, the surrogate mother was arrested by the police due to an FIR lodged against her. Thereafter, she delivered a baby girl.

The petitioners conveyed to the medical staff and the police officers that as per the surrogacy agreement the surrogate mother was under obligation to hand over the custody of the newly born child to them. Accordingly, the custody was given to the petitioners in presence of the medical staff and the concerned doctor. However, the concerned medical officer and staff of the civil hospital asked the petitioners to bring back the child to the civil hospital as the Respondent, i.e. Superintendent of Police, Sabarmati jail was insisting for the custody of the child. This was despite the surrogate mother confirming the contents of the surrogacy agreement and consenting to giving the custody of the child to the petitioners.

The Assistant Public Prosecutor, while throwing light upon the legal provisions pertaining to the issue stated that the Surrogacy Regulation Act, 2021 had no provision requiring that for a particular period, the custody of the child was to be retained by the surrogate mother for the purpose of breastfeeding. However, as per the National Guidelines on Infant and Young child Feeding issued by the Ministry of Human Resource Development Department of Women and Child Development (Food and Nutrition Board), Government of India, the APP stated, there was a reference with regard to the importance of breast feeding of the child for first six months from the date of birth.

The ground on which the respondents were refusing to grant the custody of the newly born child to the petitioners was that there was no order of the Court for the same and therefore, as the surrogate mother was required to be sent to judicial custody, the custody of the newly born child would not be handed over to the petitioners.

The court relied upon Clause 1(J), Clause 1(O), Clause 6(B), Section 2(zd) and Section 8 Surrogacy Regulation Act, 2021 and the agreement entered into between the parties to state that–

"It is clear that after giving birth to the child, the respondent no.5 is required to hand over the custody of the newly born child to the present petitioners who are intended parents and child born out of the surrogacy procedure shall be deemed to be the biological child of the intended couple and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force."

The court also relied upon the case of Navjot Singh Sidhu v/s State of Punjab and Another (2007) 2 SCC 574, wherein the Supreme Court stated that the Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.

Thus, in absence of any provision contained in the Surrogacy Regulation Act, 2021 providing that for the purpose of breast feeding, the custody of the child was to be retained by the surrogate mother for a particular period, the Court held that the custody of the corpus i.e. newly born child was required to be handed over to the intended parents/petitioners.

Case Title : ENA W/O ASHISH JAIN Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 248

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