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Egg donation won’t give donor legal right to become child’s parent: High Court
Bench says the sister has no legitimate right to claim that she is the biological parent of twins; grants visitation rights and access to the twin daughters to the petitioner
An outer view of Bombay High Court in Mumbai.
| Photo Credit: Vivek Bendre
The Bombay High Court on Tuesday (August 13, 2024) held that merely donating eggs or sperm does not give legal entitlement to the donor to claim that she is the biological parent of the child.
Pronouncing the verdict that was reserved on August 2, 2024, single Bench judge, Justice Milind Jadhav dismissed an argument of a woman (petitioner’s sister), who had volunteered to donate her oocyte (eggs) for her sister and brother-in-law who couldn’t conceive naturally and said the sister had no legitimate right to claim that she was the biological parent of the twins.
The Bench was hearing a plea filed by a woman (petitioner) who challenged a trial Court order that refused to give her visitation rights and access to her twin daughters born through surrogacy.
Also Read:Why were the surrogacy rules modified? | Explained
Appearing for the petitioner, Advocate Ganesh Gole argued that since the twin girls are of growing age, the petitioner needs to be given visitation rights. “When the petitioner failed to conceive naturally due to medical issues of both parties as averred in the petition, the couple consulted a gynaecologist in Bengaluru who diagnosed that eggs of the petitioner were non-viable. The gynaecologist advised the couple to go for altruistic surrogacy through an egg donor and that is when the petitioner approached her younger sister who was already married and had a daughter. The sister agreed to be the egg donor and on November 30, 2018, the procedure was carried out at an infertility centre in Bengaluru where parties entered into a Surrogacy Agreement,” Mr. Gole said.
The In vitro fertilization [IVF] treatment happened in December 2018, and the petitioner’s sister donated her eggs in January 2019 and the surrogacy procedure commenced thereafter with the surrogate mother.
Road accident
Unfortunately, the petitioner’s sister lost her daughter and husband in a road accident on April 21, 2019. The accident left her with disability. On August 25, 2019, twin daughters were born through the surrogate mother in Bengaluru. From then till March 2021, the sister resided with the couple and their twin daughters at Navi Mumbai since she was depressed.
Following a marital discord within two years after the twins were born, the husband left the petitioner, took away the twins and started living with the sister who donated eggs. The twins have turned five and recognise the sister as their mother, Mr. Gole said.
The Judge referred to the National Guidelines for Accreditation, Supervision, and Regulation of ART (Assisted Reproductive Technology) clinics in India, enacted in 2005, and noted, “In that view of the matter, the younger sister of the 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. 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.”
“Marriage of the petitioner with the respondent [husband] is admittedly in subsistence. Law proceeds based on regulations, rules, guidelines and statutes in place, rather than on emotional considerations of parties,” the judge observed.
The sister contended that even her parents are supportive of her decision to live with the petitioner’s husband and the twins since she donated her egg so that makes her biological mother, more so, she claimed that after the tragic accident in which she lost her daughter and husband, she has been depressed.
‘Non-application of mind’
The Judge refused her contention and noted, “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 must be decided by 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. In that view of the matter, a strong prima facie case is clearly made out by the petitioner 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 benefited only the husband.”
Justice Jadhav held that the lower Court Order that denied visitation rights to the petitioner was without proper application of mind. The Bench, therefore, granted visitation rights and access to the twin daughters to the petitioner.
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