Delhi District Court
Rihannon Elizabeth Nixon vs Mrs Vimla Devi on 6 April, 2013
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 468/12
UNIQUE ID NO. 02406C0305472012
RIHANNON ELIZABETH NIXON,
D/o Mr. Llyod Parry Nixon,
R/o 306 B, Kilburn Lane, London, W9 3EF,
United Kingodom. ....... Plaintiff.
Vs.
1. MRS VIMLA DEVI,
W/o Mr. Ashiq,
R/o 102/08, Garhi,
East of Kailash,
New Delhi-110065.
2. MR. ASHIQ,
S/o Shri Kishan,
R/o 102/08, Garhi,
East of Kailash,
New Delhi-110065 . .......Defendants.
DATE OF INSTITUTION : 10.12.2012
DATE OF RESERVING JUDGMENT : 06.04.2013
DATE OF PRONOUNCEMENT : 06.04.2013
CS No. 468/12 Page No. 1 of 15
J U D G M E N T
(UNDER ORDER 12 RULE 6 CPC) 06.04.2013 Vide this judgment, I shall dispose of suit filed by plaintiff against defendants for declaration.
Relevant facts necessary for disposal of the present suit are as follows:-
1. In the suit, it is stated that plaintiff is a single woman having dual citizenship of United Kingdom and Australia. It is stated that presently plaintiff is residing at 306 B, Kilburn Lane, London, W9 3 EF, United Kingdom. It is stated that defendant nos. 1 and 2 are wife and husband and are citizens of India and residing within territorial jurisdiction of this Court and as such amenable to jurisdiction of this Court.
2. It is stated that plaintiff visited India in month of March, 2012 as she learnt that advanced ART (Assisted Reproductive Technologies) procedures such as IVF (In Vitro Fertilization) is not illegal in India and that there are various ART Clinics which are operating in India. It is stated that plaintiff is one of unfortunate person having infertility problem and hence not able to conceive child by natural process on account of medical reasons and that all the medical assistance has failed to help plaintiff to have a child by natural process. It is stated that plaintiff before visiting to India had left hope of ever being able to CS No. 468/12 Page No. 2 of 15 have her own child, however, when she heard about ART Clinics and the procedure, she could see a ray of hope of being parent and having her own child.
3. It is stated that plaintiff was able to find one such ART Clinic operating in Delhi, visited the same and discussed her problem. It is stated that various investigations were carried out on plaintiff by concerned doctors at the said clinic to know cause of infertility of plaintiff. It is stated that thereafter, plaintiff was advised process of ART vide IVF.
4. It is stated that after understanding procedure, plaintiff entered into a Gestational Surrogacy Agreement dated 10.03.2012 between her on the one hand and defendant no. 1 on the other hand and defendant no. 2 was made a conforming party to the said agreement. It is stated that as per this agreement, plaintiff is intended mother and defendant no. 1 agreed to act as Surrogate Mother.
5. It is stated that in terms of above said agreement, it was an arrangement between plaintiff and defendants that defendant no. 1 will act as surrogate mother and will give birth to a child for plaintiff by way of embryo transfer in the uterus of defendant no. 1 through IVF process.CS No. 468/12 Page No. 3 of 15
6. It is stated that as per the said agreement, it was agreed that for all intents and purposes, the intended mother shall be the legal parent and natural guardian of the child and defendants shall have no say and shall not raise any objections, whatsoever, with respect to intended mother being parent of the child. It is stated that plaintiff gave full financial support to defendant no. 1 during term of pregnancy and has also complied with conditions with respect to financial terms and all medical related expenses. It is stated that apart from the said Gestational Surrogacy Agreement, certain other documents were also executed between the parties to give effect to the Gestational Surrogacy Agreement.
7. It is stated that as of now, there is no specific legislation/law which governs surrogacy in India, however, there are guidelines for ART Clinics formulated by ICMR/NAMS (Indian Council of Medial Research/National Academy of Medical Sciences) and report of Law Commission of India bearing no. 228 which are being used guidelines for regulating surrogacy in India. It is stated that in India, according to National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by ICMR and NAMS, the surrogate mother is not considered to be legal mother. It is stated that ICMR has come up with Draft Assisted Reproductive CS No. 468/12 Page No. 4 of 15 Technology (Regulation) Bill & Rules, 2008. It is stated that it is further provided that commissioning parents or parent shall be legally bound to accept custody of the child irrespective of any abnormality that the child may have and refusal to do so shall be an offence. It is stated that a surrogate mother is under obligation to relinquish all parental rights over the child.
8. It is stated that defendant no. 1 had entered into Gestational Surrogacy Agreement to conceive, carry and give birth to child for plaintiff out of her own free will and defendant no. 2 being husband of defendant no. 1 had given his unequivocal consent and permission to defendant no. 1 to become surrogate mother.
9. It is stated that Gestational Surrogacy Agreement deals with obligations of the parties with respect to custody and parentage of child born out of surrogacy agreement and shall continue to exist even after termination of agreement. It is stated that defendant no. 1 under the said agreement gave birth to a baby boy on 15.11.2012. It is stated that sperm for the child were taken from anonymous donor. It is stated that the said baby boy is born under the Surrogacy Arrangement through ART Process and plaintiff is biological mother of the baby boy. It is stated that the said baby boy is born through ART Process by CS No. 468/12 Page No. 5 of 15 which embryo was transferred in the uterus of defendant no. 1 through IVF and egg of plaintiff was used for developing the embryo. It is stated that defendants in terms of abovementioned agreement, have given custody of said baby boy to plaintiff.
10. It is stated that though there is no dispute and no denial of factum of plaintiff being the genetically/biological mother of baby boy but since defendant no. 1 has given birth to the said baby boy during subsistence of her marriage with defendant no. 2, as such, the presumption under Indian Law that husband of defendant no. 1 is father of the said child has to be refuted. It is stated that though defendants presently under the terms of agreement have given custody of baby boy to plaintiff but plaintiff has apprehension that in future, they might claim custody of the boy and stake their claim. Hence, present suit.
11. Plaintiff has prayed for passing a decree of declaration in favour of plaintiff thereby declaring that plaintiff is genetically/biological mother of baby boy named Isaac David Nixon and defendant no. 2 is not father of the baby boy and for passing an order directing defendants not to act in contravention of terms of Gestational Surrogacy Agreement dated 10.03.2012 and that the parties shall remain bound by terms of the agreement.CS No. 468/12 Page No. 6 of 15
12. Defendants entered appearance before Court and filed WS on 07.01.2013. In WS, defendants admitted entire claim of plaintiff. Counsel for defendants on 07.01.2013 submitted before Court that defendants have no objection if the decree as prayed for by plaintiff in present suit is granted in her favour.
13. I have heard arguments addressed by respective counsels and perused the record.
14. Statements of both the defendants were recorded before Court on 23.02.2013. Defendant no. 1 in her statement stated that she had entered into surrogacy agreement dated 12.03.2012 (in clarification given by her counsel, date of agreement has been admitted to be 10.03.2012 instead of 12.03.2012 which is stated to have been recorded on account of typographical mistake) with plaintiff. She further stated that her husband i.e. defendant no. 2 had given consent for the same and was conforming party to the said agreement. She further stated that she had given birth to baby boy on 15.11.2012 and the baby boy was handed over to plaintiff. She further stated that she states that the baby boy to whom she has given birth is legally child of plaintiff and she does not have any objection to declaration being given by the Court that plaintiff is legal and biological mother of baby boy to whom she gave birth on CS No. 468/12 Page No. 7 of 15 15.11.2012 under surrogacy agreement. She further stated that she will remain bound by surrogacy agreement and shall never claim any right whatsoever, over the baby boy born on 15.11.2012. Defendant no. 2 in his statement before Court stated that he is husband of defendant no. 1 and conforming party to surrogacy agreement dated 12.03.2012 (in clarification given by his counsel, date of agreement has been admitted to be 10.03.2012 instead of 12.03.2012 which is stated to have been recorded on account of typographical mistake). He further stated that the baby boy to whom his wife had given birth on 15.11.2012 was under surrogacy arrangement for plaintiff. He further stated that he had given consent to his wife to enter into surrogacy agreement. He further stated that he is not biological father of baby boy born on 15.11.2012 to his wife. He further stated that he has no objection to plaintiff being declared legal and biological mother of baby boy to whom his wife gave birth on 15.11.2012 and that he will never claim any right over the baby boy born on 15.11.2012.
15. As on date, India does not have any Law governing surrogacy. In Manji's case (2002), Hon'ble Supreme Court of India held that commercial surrogacy was legal in India. As on date, surrogacy agreements are governed by contract entered into by the parties concerned.CS No. 468/12 Page No. 8 of 15
16. Indian Council for Medical Research has given guidelines in the year 2005 regulating Assisted Reproductive Technology Procedures. Law Commission of India submitted its 228th report on Assisted Reproductive Technology Procedures discussing importance and need for surrogacy and also provided steps to be taken to control surrogacy arrangements. Law Commission of India recommended following points to be included with regard to rights and obligations of the parties to a surrogacy and rights of the surrogate child in proposed law on surrogacy:
(1) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
(2) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.CS No. 468/12 Page No. 9 of 15
(3) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
(4) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
(5) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
(6) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
(7) Right to privacy of donor as well as surrogate mother should be protected.
(8) Sex-selective surrogacy should be prohibited.CS No. 468/12 Page No. 10 of 15
(9) Case of abortions should be governed by the Medical termination of Pregnancy Act, 1979 only.
17. In the present case, there is Gestational Surrogacy Agreement dated 10.03.2012 entered into between plaintiff and defendants which prescribes for medical procedure for artificial insemination i.e. by way of placement of embryo obtained by inseminating an anonymous donor's sperm with intended mothers egg into the uterus of surrogate mother through IVF process. Defendant no. 2 being husband of defendant no. 1 also became conforming party to this agreement. In this agreement, care has been taken to provide for payment of medical expenses of surrogate mother and surrogate mother has agreed to handover custody of child born to intended parent. Intended parent in this case is also donor as she has provided her egg for formation of embryo. In this case doctor concerned has also issued a certificate dated 15.11.2012 to the effect that defendant no. 1 is surrogate of plaintiff. Majority of recommendations of Law Commission of India in this case have been followed.
18. Counsel for plaintiff during course of arguments drew my attention to guidelines for ART Clinics in India and specifically towards what is contained in Item No. 3.5.2, 3.12.1 and 1.2.33 of CS No. 468/12 Page No. 11 of 15 the guidelines. Item No. 3.5.2, 3.12.1 and 1.2.33 provides as under:
3.5.2 There would be no bar to the use of ART by a single women who wishes to have a child, and no ART Clinic may refuse to offer its services to the above, provided other criteria mentioned in this document are satisfied. The child thus born will have all the legal rights on the woman or the man.
3.12.1 A child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with consent of both the spouses.
Therefore, the child shall have a legal right to parental support, inheritance, and all other privileges of a child born to a couple through sexual intercourse.
1.2.33 Surrogacy: "Surrogacy is the arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband with the CS No. 468/12 Page No. 12 of 15 intention to carry it to term and handover the child to the genetic parents for whom she is acting as a surrogate."
19. In this case, plaintiff is a single woman but that guidelines for ART Clinics in India issued by ICMR/NAMS do not bar a single woman who may use ART facility to have a child. Rights of the child have been protected vide item no. 3.12.1. As per Item No. 3.12.1 of guidelines provided by ICMR/NAMS, presumption of legitimacy has been conferred upon child born through ART which shows that welfare of child has been given paramount importance and in this case as birth of child has already taken place, it becomes all the more important to grant declaration as sought by plaintiff for welfare of child born on 15.11.2012.
20. Plaintiff has annexed copy of Gestational Surrogacy Agreement dated 10.03.2012 alongwith Endorsement by ART Clinic, terms and conditions of surrogacy dated 10.03.2012, declaration of intent, affidavit of surrogate mother's husband (defendant no. 2), certificate dated 15.11.2012 issued by ART Clinic to the effect that egg collection was done on 09.03.2012 and embryo transfer done on 12.03.2012, oocyte collection data and certificate dated 15.11.2012 issued by doctor CS No. 468/12 Page No. 13 of 15 concerned mentioning defendant no. 1 to be surrogate for plaintiff (surrogacy agreement and other accompanying documents shown in original and returned) with the plaint. All these documents have not been denied by defendants in their WS.
21. In view of documents filed by plaintiff with the plaint as mentioned above, it becomes obvious that baby boy was born to defendant no. 1 on 15.11.2012 while she was acting as surrogate for plaintiff and that this baby boy was born because of embryo transfer in uterus of defendant no. 1 formed out of fusion of egg of plaintiff and sperm of anonymous donor. It is thus clear that baby boy born to defendant no. 1 on 15.11.2012 is genetically related to plaintiff. Further in view of statements given by defendants before Court on 23.02.2013, it becomes clear that plaintiff is biological mother of baby boy namely Isaac David Nixon born on 15.11.2012. Further definition of term 'Surrogacy' in guidelines laid down by ICMR/NAMS itself recognizes that the intended parents are parents genetically related to the child and not the surrogate mother or her husband. Defendants have by way of their statements before Court have stated that they shall not claim any right over the baby boy born on 15.11.2012.
CS No. 468/12 Page No. 14 of 1522. In view of facts and circumstances of present case i.e. in view of documents filed by plaintiff, admission of claim of plaintiff by defendants in their WS and by way of their statements before Court on 23.02.2013, a decree is passed under Order 12 Rule 6 CPC in favour of plaintiff thereby declaring that plaintiff is biological mother of baby boy namely Isaac David Nixon and that defendant no. 2 is not father of this boy. It is further directed that defendants shall remain bound by their statements dated 23.02.2013 given before Court and also by terms of Gestational Surrogacy Agreement dated 10.03.2012. Decree-sheet be prepared accordingly. No order as to costs.
File be consigned to Record Room.
Announced in open Court on 06.04.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
CS No. 468/12 Page No. 15 of 15