'Rigmarole Of Law Subservient To Best Interest Of Child': P&H HC Declares A Single Biological Father As Sole Guardian Of Surrogate Child

A Punjab & Haryana High Court Bench of Justice Anupinder Singh Grewal has declared the biological father of a surrogate child as his sole guardian.

The Court granted relief and recognised the parental rights of the father after the Australian Embassy had rejected the child’s visa application, citing unclear laws on surrogacy for single parents until 2021.

To that end, it was said that, "The technicalities and rigmarole of the law would be subservient to the best interest and welfare of the child particularly when the Court is exercising parens patriae jurisdiction. It is the moral duty of a constitutional Court to adapt to the exigencies of the situation as the law is not static but dynamic and keeps evolving."

In furtherance, the Court also clarified that, "The provisions of the Surrogacy (Regulation) Act 2021 would not come in the way of the declaration being sought by petitioner No.2 for the reason that the Act itself provides that it is applicable prospectively and it has come into force in the year January, 2022. Section 53 thereof provides that it will not be applicable to the existing surrogate mothers by providing the gestation period of 10 months from the date of its enactment i.e. 25.01.2022,".

Counsel Gagan Oberoi and Counsel Ayna Vasudeva, among others, appeared for the petitioners, while Counsel Shweta Nahata, DAG Luvinder Sofat and Counsel Jaya Kumari appeared for the respondents.

In this case, the petitioner-father sought sole legal guardianship of his 4-year-old surrogate child in India. He resides in Australia and faced visa denial by the embassy, citing unclear surrogacy laws for single parents until 2021. The child, born in 2019, resulted from an agreement with a surrogate mother. Despite a valid Indian passport, the embassy demanded a Court declaration affirming the father's full custody, the right to relocate the child to Australia, and authority over the child's residence. Other involved parties, including the egg donor, renounced any legal claims. Neither the surrogate mother nor her husband objected to the custody and stated that they had no intention to claim any custodial or parental rights of the child at any time in future.

The Court emphasized that the best interests of the child would be of foremost consideration, and the optimal growth and development of the child would override other considerations. 

In a similar vein, the Court observed that, "This court would not allow a situation where a child would be destitute, abandoned or left to fend for himself. The petitioner, who is the single parent, would be in a better position to provide education, material comforts and moral support for the proper upbringing of the child. The education and upbringing of the child would not only shape the future of the child but that of the nation as well,".

Subsequently, the Court granted relief and declared the petitioner-father as the sole lawful guardian of the child, with legal custody, the right to determine residence, and the right to remove the child from India.

Cause Title: Master Eric Thind & Anr. vs Union of India & Ors.

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