Delhi District Court
Ashish Wadhwa And Anr. vs . Chaphala Haladar And on 20 December, 2021
IN THE COURT OF MS. CHITRANSHI ARORA, CIVIL JUDGE
02, SOUTHEAST DISTRICT, SAKET
CS SCJ 223/21
ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND
ANR.
20.12.2021
Order
1.Vide this order I shall decide if the suit is liable to be decreed under Order 12 Rule 6 CPC as claimed by the plaintiffs.
2. The plaintiffs have filed a suit against the defendants seeking the relief of declaration that the plaintiffs are the legal parents of the baby girl named as Myraa Wadhwa for all the intents and purposes and also that the defendants have no parental rights over her.
3. Further, the plaintiffs have claimed a relief of injunction against the defendants restraining them from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 21.08.2019.
4. The brief facts as claimed by the plaintiffs are that the plain tiffs opted for Gestational Surrogacy and entered into a Gestational surrogacy agreement dated 21.08.2019 with the defendants. Defen dant no. 1 agreed to act as a surrogate mother with the consent and approval of her husband i.e. defendant no.2. As per the agreement, the surrogate mother would just be a gestational carrier and not bio logically related to the child. The term of the agreement further pro Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2021.12.20 17:06:03 +0530 CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND ANR. Page no. 1 of 8 vided that the defendant no.1 will act as a surrogate mother and will give birth to the child for the plaintiffs by way of embryo transfer in the uterus of the defendant through IVF process. It was further agreed that the defendants shall have no say and shall have no ob jections with respect to the intended father and mother being the parents and the sole custodian of the child so born out of the said surrogacy agreement. The defendants had agreed to their obliga tions under the terms of the agreement. Thereafter, the defendant no. 1 gave birth to a baby girl on 07.07.2020 through the IVF process under the surrogacy agreement. The defendants have ful filled their obligations in the terms of the agreement and have given the custody of the sad baby girl now named as Myraa Wadhwa to the plaintiffs. Though there is no denial that the plaintiffs are the parents of the baby girl but the plaintiffs have apprehension that in future the defendant may claim the custody of the baby girl. There fore, the plaintiffs have filed the suit seeking declaration and injunc tion in their favour.
5. In the written statement filed by the defendants, the defen dants have admitted the averments of the plaintiffs and have further asserted that they have fulfilled their obligations under the agree ment and have nothing to do either with the plaintiff or with the baby girl. The defendants have further admitted that the said baby girl for all intents and purposes is the child of the plaintiffs. It has been further asserted that the defendant no. 2 is not anyway related to the baby girl born out of the surrogacy agreement and has noth ing to do with the child. It has been further asserted by the defen Digitally signed by CHITRANSHI CHITRANSHI ARORA ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR ANDARORA Date: 2021.12.20 CS SCJ 223/21 ANR. Page no. 2 of17:06:14 8 +0530 dants that they have no intention of claiming any right or stake over the baby girl born out the surrogacy agreement. It has been further averred in the written statement that the defendants have already given undertaking that they will not claim any stake and right over the child or act in contravention to the terms of the agreement. Lastly, the defendants have stated that they have no objection if the rights of the plaintiffs are crystalised and decree is passed in favour of the plaintiffs.
6. After the pleadings were complete, defendant no. 1 appeared before the court and gave a statement on oath, wherein she submit ted that she has fulfilled all the obligations under the gestational surrogacy agreement dated 21.08.2019 and has handed over the cus tody of the child to the plaintiffs and she has no objection if the court grants parental order in favour of the plaintiffs. She has fur ther stated that she and her husband shall restrain themselves per petually from acting in contravention to the terms of the said agree ment.
7. Perusal of the pleadings and the statement of defendant no.1 shows that the defendants claim no right over the child whatsoever and have no objection if the suit is decreed in favour of the plaintiff. The defendants have admitted the claim of the plaintiffs in toto.
8. However, before proceeding further, it is pertinent to under stand the law pertaining to surrogacy in India.
Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2021.12.20 17:06:20 +0530 CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND ANR. Page no. 3 of 8
9. The Surrogacy Regulation Bill, 2019, though introduced, has not become the law of the land, till date. National Guidelines for ac creditation, supervision, regulation of ART Clinics by the ICMR and the National Academy of National Sciences have issued guide lines which guide the intending couples through this process of Sur rogacy. Also, the Law commission of India dealt with Surrogacy, in its 228nd report. These two documents provide guidance for dealing with Surrogacy arrangements/agreements in India. Ld. counsel for the plaintiff has filed on record the Chapter 3 of the ICMR guide lines and the Law commission report for perusal. The ICMR guide lines specifically provides the following clauses: 3.5.5 A thirdparty donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa.
3.12.1. A child born through ART shall be presumed to be the le gitimate child of the couple, having been born in wedlock and with the consent of both the spouses. Therefore, the child shall have a le gal right to parental support, inheritance, and all other privileges of a child born to a couple through sexual intercourse.
10. Further, in the 228th Law Commission report, it has been pro vided that: "In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND ANR.
ARORAPage no. 4 Date:
of 8 2021.12.20 17:06:28 +0530 Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents." The report no. 228 of the law commission of India also relies on the said guidelines.
11. Therefore, it is clear that there is no statute which governs surrogacy in India, however, the guidelines issued by the ICMR do regulate surrogacy arrangements in India. It clearly provides that the child will be considered as the legitimate child of the couple born within the wedlock and with all the right of parentage, support and inheritance. Further, it is clear that there is no law which bars par ties from entering into such gestational agreements, meaning thereby that the agreement entered between the parties is a legal and executable agreement, if the conditions of the Indian Contract Act, Section 10 are met. In the instant case, all the parties were compe tent to contract and there is no objection by the defendants as to the agreement. Therefore, the agreement into between the parties in this case is legal and executable.
12. In the instant case, the surrogacy agreement was entered into between the plaintiffs and the defendants on 21.08.2019, after which a baby girl namely 'Myraa Wadhwa' was born. Both the par ties claim and admit that they have fulfilled their part of the obliga tions in the agreement.
13. I have perused the documents placed on record by the plain tiff including the agreement with the annexures and the identity proofs of the parties and the birth certificate of the child Myraa CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND ANR. Page no. 5 of 8 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2021.12.20 17:06:35 +0530 Wadhwa, wherein the name of the mother and the father is that of Ms. Prachi Wadhwa and Mr. Ashish Wadhwa.
14. It is pertinent to reproduce clause 3.1.20 of the agreement which provides that : "the surrogate mother will never claim any right nor make any claim over in respect of the child and she unequivocally accepts, agrees, acknowl edges, confirms and declares that the Child, which she will give birth shall contractually and genetically belong to the intended Parents and therefore, she and/ or her husband shall have no claim over the child nor shall they claim any right in respect of th Child. She further confirms and declares that in giving birth of the child she will only perform her contractual obligations under this agreement towards the intended parents and not any material obligations arising out of conju gal relationship and lawful wedlock with the Con firming party.
15. Further, the declaration of intent, given by the defendant no..1 is perused, wherein, she has stated that "I have no intention of having physical or legal custody or any parental rights or duty with respect to any child born of this surrogacy process. Rather, it is my intention that the intended parents Mrs. Prachi Wadhwa, DOB 12.12.1980, w/o Mr. Ashish Wadhwa, R/o E804, Nirala Eden Park, Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADARARORA AND ANR. Page no. 2021.12.20 Date: 6 of 8 17:06:45 +0530 Ahinsa Khand to Indrapuram, Gaziabad201010, and presently re siding at 1/8, Austrian Crestent Pascoe, Vale Vic 3044, herein after referred as to "Intended Mother" and Mr. Ashish Wadhwa, DOB 23.06.1978, s/o Mr. Babulal Panjabi, R/o E804, Nirala Eden Park, Ahinsa Khand to Indrapuram, Gaziabad201010, and presently residing at 1/8, Austrian Crestent Pascoe, Vale Vic 3044, herein after referred as to "Intended father" (collectively the in tended parents), shall exclusively have such custody at all parental rights and duties."
16. Furthermore, the affidavit of surrogate mother's husband is perused, wherein he has agreed in para 5 that "I will not be the bio logical father of the child or the children here born of this surro gacy process, I shall at no time attempt to assert any parental rights or seeks any kind of custody or visitation with respect to the said child and that it is intended that the intended mother and the intended father of the child, shall exclusively have full physical and legal custody and all parental rights."
17. Thus, keeping in view the pleadings in this case, the contents of the declaration given by defendant no. 1 and the affidavit signed by defendant no.2, the admissions of the defendants in the written statement, the statement of the defendant no. 1 given in court on 08.04.2021, the ICMR guidelines and its 228 law commission re port, I am of the considered opinion that the plaintiff is entitled to a decree forthwith under the provision of O 12 R 6 CPC.
Digitally signed by CHITRANSHI CHITRANSHI ARORA
ARORA Date: 2021.12.20
17:07:02 +0530
CS SCJ 223/21 ASHISH WADHWA AND ANR. Vs. CHAPHALA HALADAR AND ANR. Page no. 7 of 8
18. Accordingly, it is declared that the plaintiffs namely, Mr. Ashish Wadhwa and Mrs. Prachi Wadhwa are the legal and biologi cal/ genetic parents of the baby girl namely Myraa Wadhwa, born on 07.07.2020 at Apollo Cradle R2, Nehru Enclave, Kalkaji, New Delhi, for all intents and purposes and defendants have no parental rights over the baby girl. Further, the defendants are restrained from acting in contravention to the terms of the Gestational Surrogacy Agreement dated 21.08.2019.
19. Parties to bear their own cost.
20. Decree be prepared accordingly.
21. File be consigned to record room accordingly.
Digitally signed by CHITRANSHI CHITRANSHI ARORA
ARORA Date: 2021.12.20
17:07:08 +0530
(Chitranshi Arora)
CJ02, SouthEast, Saket Court,
New Delhi/ 20.12.2021
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