Mumbai Court Declares Australia Based Couple As Legal Parents Of Surrogate Child

The couple claimed that the surrogate mother was not cooperating with them despite the existence of an agreement and there were several other impediments and requirements of the Embassy of Australia.

In the absence of a specific law for the parents to seek such a relief, the court relied on guidelines which state that the surrogate mother is not considered to be the legal mother.

"According to the national guidelines for accreditation/supervision of ART Clinics, 2005 by ISMR/NAMS, the surrogate mother is not considered to be the legal mother. Thus, the plaintiffs are biological & genetic parents of a baby boy "Neel" and they are entitled for the custody of child as well as for removing a child from India to Australia and a child is allowed to reside with them," the court observed.

The court also relied on the Indian Council of Medical Research and National Academy of Medical Sciences (NAMS) and Law commission. The surrogate also relented before the court and gave her 'no objection.'

The couple, both in their 30s, are Indian origin with permanent visas of Australia. In March 2019, they entered into a Surrogacy Agreement pursuant to which the surrogate delivered their son October 30, 2019. They approached the court the same year.

According to the agreement, the surrogate agreed to deliver their child month after their embryo was transferred in her uterus through the IVF process. It was categorically agreed that the couple would be the legal parents and natural guardians of the child. And the surrogate wouldn't object.

Based on the agreement the couple gave the surrogate medical and financial support.

The surrogate appeared and filed her written statement. She admitted the agreement and further submitted that she has no objection if, the custody of child is given to plaintiffs and allowed to take a child from India and their declaration as a legal parents of the child.

"Thus, in view of above discussion, I am of the view that there is no legal impediment or otherwise in granting the decree as prayed by plaintiffs," the court said.

Case Title : Mr. Nital Bhagwan Tawde And Anr v Mrs. Sanjana Kate

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