The Bombay High Court has emphasized that a sperm / oocyte donor shall not have any parental right or duties in relation to the child.

In that context, the Bench of Justice Milind N Jadhav observed that, "it is clearly stated that the sperm / oocyte donor shall not have any parental right or duties in relation to the child and 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".

The petitioner had filed a case seeking custody and visitation rights for her twin daughters, who were born through surrogacy. The petitioner was the intended mother, and the first respondent was the intended father. Both parties had entered into a surrogacy agreement at an Infertility Centre in Bengaluru. After marrying in 2012, the petitioner and Respondent No.1 faced difficulties conceiving naturally due to medical issues, leading them to pursue altruistic surrogacy, with the petitioner’s younger sister acting as the egg donor. Unfortunately, the petitioner's sister was involved in a road accident soon after the egg donation, which resulted in the death of her husband and daughter, leaving her severely disabled. The twins were born on August 25, 2019, and initially resided with both parents. However, in March 2021, Respondent No.1 relocated to his native place in Ranchi, taking the daughters with him, which led to the petitioner seeking legal intervention.

The High Court outrightly rejected Respondent No.1's submission that the petitioner's younger sister, being the oocyte donor, was the biological mother of the twin daughters. The Court referred to the settled position in law, as per the prevailing guidelines and the Surrogacy Act, holding that the oocyte donor has no legitimate right to claim biological parenthood. The Court Clarified that this is a legal issue rather than a factual one, governed by the guidelines that were in effect at the time.

The Court also examined the Surrogacy Agreement, and observed that even if Respondent No.1 claimed to have executed the agreement with the surrogate mother and the doctor, the agreement was signed by the petitioner as well. The Court emphasized that the agreement was exclusively between the intending parents (the petitioner and Respondent No.1), the surrogate mother, and the doctor. The egg/oocyte donor was not a party to the agreement and, therefore, had no legal or contractual rights.

The Court further highlighted that the agreement referred to the intended parents, and both the petitioner and Respondent No.1 had signed it on every page, including page 5, alongside the doctor's signature. The Court found this to be a strong prima facie case for setting aside and quashing the impugned order, describing the order as having been passed with complete non-application of mind and as clearly unsustainable, benefiting Respondent No.1 only.

In that context, it was said that, "Though admittedly the younger sister of Petitioner is the oocyte donor in the present case she has no legitimate right to claim that she is the biological parent/mother of the twin daughters... The donor of the egg/oocyte does not figure therein and has no legal or contractual right whatsoever. The ethos and genuineness of the said Agreement lie in the fact that the reference made therein is to the intended parent."

Cause Title: Shailja Nitin Mishra vs Nitin Kumar Mishra and Anr. (Neutral Citation: 2024:BHC-AS:32264)

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Bombay High CourtJustice Milind JhadavSurrogacy Act

Ananya Soni