Delhi District Court
Mr. Rajeev Verma & Anr vs Mrs. Mali Tamang & Anr on 8 September, 2015
IN THE COURT OF SHRI DEEPAK WASON : JSCCCUMASCJ
CUMGJ, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CS No. 86/2014
IN THE MATTER OF:
Mr. Rajeev Verma & Anr. ...Plaintiffs
VERSUS
Mrs. Mali Tamang & Anr. ....Defendants
ORDER
(08.09.2015)
1. This order shall dispose off an application filed by plaintiffs under Order XII Rule 6 r/w Section 151 Code of Civil Procedure (hereinafter called CPC) with the prayer that decree of declaration and mandatory and permanent injunctions be passed in favour of the plaintiffs and against the defendants thereby declaring the plaintiffs as parents of the baby and further with the prayer that defendants be restrained from acting in contravention to the terms of Gestational Surrogacy Agreement dated 23.09.2013 and to remain bound by the terms of the said agreement at all times.
2. It is stated in the plaint that plaintiffs no.1 and 2 are husband and wife and citizens of India and hold permanent residency of Australia and defendants no.1 and 2 are CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 1 of 16 husband and wife and citizens/residents of India.
3. It is further stated in the plaint that plaintiffs were unable to have their own child naturally and learnt that the advanced ART (Assisted Reproductive Technologies) procedures such as IVF (In virto Fertilization) are not illegal in India and that there are various ART Clinics operating in India. It is further stated in the plaint that plaintiffs also tried to conceive twice through In Vitro Fertilisation but the same did not succeed and thus, Gestational Surrogacy was only option left for the plaintiffs, since the plaintiffs were inclined to have their own child and wanted to have the child at an age when they are capable and would be able to take care of the child and are not too old. It is further stated in the plaint that after understanding the process and procedure, the plaintiffs entered into one Gestational Surrogacy Agreement dated 23rd September, 2013 (hereinafter referred to as the 'Said Surrogacy Agreement'), which was executed between the plaintiffs and the defendants.
4. It is further stated in the plaint that as per the terms of the said agreement, the plaintiffs are the intended parents and the defendant no.1 agreed to act as Surrogate mother with the consent and approval of her husband i.e. defendant no.2 and the surrogate mother would just be a Gestational CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 2 of 16 carrier and not biologically related to the child. It is further stated in the plaint that in terms of said Agreement, it was arrangement between the plaintiffs and the defendants that the defendant no.1 will act as a surrogate mother and will give birth to a child for plaintiffs by way of embryo transfer in the uterus of the defendant through IVF process.
5. It is further stated in the plaint that plaintiffs gave full financial support to the defendant no.1 during the term of the pregnancy and had also complied with the conditions with respect to the financial terms and all the medical related expenses were also borne by the plaintiffs with respect to the said surrogacy arrangement in terms of the Gestational Surrogacy Agreement. It is further stated in the plaint that defendants had entered into the Gestational Surrogacy Agreement to conceive, carry and give birth to the child for the plaintiffs out of her own free will and volition.
6. It is further stated in the plaint that defendant no.1 had agreed under the agreement and was under obligation to:
i. To become pregnant by way of implantation of embryos and to carry the pregnancy until the occurrence of the birth of the child.
ii. In order to increase the certainty that any child CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 3 of 16 born pursuant to the Agreement is genetically related to the Intended Father (Plaintiff no.1), the surrogate agreed not to engage in sexual intercourse for a period prior to any attempt at embryo transfer, as may be determined by the attending physician. The surrogate also agreed not to take any other action that will result in her pregnancy through means other than the embryo transfer contemplated under the agreement.
iii. Upon giving birth to the child, the contractual obligation of the Surrogate shall stand perpetually extinguished and the relationship between the surrogate and the child shall stand perpetually severed, disassociated and come to an end.
7. Plaintiffs have also stated various relevant clauses of said Surrogacy agreement in para 15 of the plaint which are not reproduced here as the they are the part of record.
8. It is further stated in the plaint that defendant no.1 under the said agreement gave birth to a Baby girl on 02.06.2014 (2nd June, 2014) at Max Super Specialty Hospital, 1 Press Enclave Road Saket, New Delhi and the girl now named as Arisha Verma. It is further stated in the plaint that CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 4 of 16 in terms of the agreement the defendants have fulfilled their obligation and have given the custody of the said baby girl now named as Arisha Verma towards the plaintiffs who are the parents of the said baby girl. It is further stated in the plaint that there is no dispute and no denial of factum of the plaintiff being biological/genetical father of the said baby girl, and the custody has been handed over to the plaintiffs but however, the plaintiffs have apprehension that in future the defendants might claim the custody of the baby girl and stake her claim for any vested interest and it is in the interest of the baby girl that the parental rights of the plaintiff is crystallized, so that in future there is no dispute over the parental rights of the child.
9. It is further stated in the plaint that as per the ART BILL, 2010, Section 35 (1) "A child born to a married couple through the use of assisted reproductive technology (ART) shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses and shall have identical legal rights as a legitimate child born through sexual intercourse." It is further stated in the plaint that the said bill though has not been passed but is adopted by the Indian Council of medical Research to regulate surrogacy programs for the time being till the bill becomes an Act.
CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 5 of 1610. It is further stated in the plaint that until and unless the said declaration is not given in the favour of the plaintiffs and the defendants are not permanently restrained, the legitimacy of child will remain as a question and a interference by the defendants will hang as permanent threat. Hence, the present suit.
11. The defendants entered the appearance and filed their written statement wherein the defendants admitted the entire claim of the plaintiffs. It is stated in the written statement that it is correct defendants have entered into a Gestational Surrogacy Agreement dated 23.09.2013 with the plaintiffs. It is further stated in the written statement that defendant no.1 has given birth to a baby girl and defendants have also fulfilled their obligations under the Agreement by handing over the baby girl to the plaintiffs. It is further stated in the written statement that defendants have nothing to do with the child in any manner and their obligations under the Agreement stand fulfilled and the Agreement stands satisfied from their end. Other various contents of the plaint are admitted and not denied.
12. I have heard the plaintiffs and gone through the entire record. It is a matter of record that after 21.02.2015, neither defendants nor their counsel appeared before this Court.
CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 6 of 1613. For the purpose of application of Order XII Rule 6 CPC, help can be taken from the judgment of the Division Bench of Hon'ble High Court of Delhi in the case titled as Vijay Mayne Vs. Satya Bhushan Kumar, 2007 VII AD (DHC) 303 wherein it was held in paragraph 12 that :
"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitled the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored"CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 7 of 16
14. Hence, as per the above said judgment, the admissions can be in pleadings or in documents. The admission can even be constructive and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement. Under Order XII Rule 6 CPC, the Court on the application of plaintiff or on its own may make judgment upon the admission made by the opposite party. The object of this rule is to enable a party to get speedy judgment.
15. During the course of the proceedings, defendants have filed their affidavits as DW1/A and DW2/A wherein they have stated that they have no objection to the contents of the plaint and admitted the same as true. Further, defendant no.1 has given the statement in the court on oath that she has entered into the surrogacy agreement dated 23.09.2013 with the plaintiffs and she gave birth to a female child on 02.06.2014 in Max Hospital, Saket, New Delhi. The defendant no.1 also gave undertaking that she would be bound by the surrogacy agreement along with the declaration of surrogated dated 23.09.2013. The defendant no.2 also gave the statement in the court on oath that the defendant no.1 is the wife of defendant no.2 and defendant no.2 is the confirming party to the surrogacy agreement dated 23.09.2013. Defendant no.2 also gave undertaking to abide by the surrogacy agreement and declaration of CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 8 of 16 surrogate dated 23.09.2013 being a confirming part to the agreement.
16. In Manji's case (2002), the Hon'ble Supreme Court of India held that the commercial Surrogacy was legal in India. However, India doest yet have law on this point. The Surrogacy Agreements are governed by contract as entered into be the parties and certain Guidelines were given by the Indian Council for Medical Research. The Law Commission of India has also submitted the 228th report on subject in question and discussed the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:
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 CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 9 of 16 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.
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 childabuse, 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) Sexselective surrogacy should be prohibited.CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 10 of 16
9) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
Thus, Surrogacy is legal in India and the parties can entered into the Surrogacy agreement.
17. It is also relevant to look at certain clauses as provided in the guidelines as provided by Indian Council for Medical Research in the year 2005;
"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 intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate".
Thus, the definition of surrogacy itself recognizes that the intended parents are the parents genetically related to the child and not the surrogate mother of her husband.
"1.2.22 IVFET (In vitro FertilizationEmbryo Transfer):
"In vitro Fertilization Embryo Transfer (IVFET) is the fertilization of an ovum outside the body and the transfer of the fertilized ovum to the uterus of the woman."
3.5.4. A surrogate mother carrying a child biologically unrelated to her must register in her own name. While registering she must mention that she CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 11 of 16 is surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc. She must not use/register in the name of the person for whom she is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death (in whose names will the hospital certify this death?). The birth certificate shall be in the name of the genetic parents. The clinic, however, must also provide a certificate to the genetic parents giving the name and address of the surrogate mother.
3.5.6. No ART procedure shall be done without the spouse's consent.
3.10.1. A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the record will be maintained in the clinic) that the child is theirs.
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 the 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.
3.16.1. Legitimacy of the child born through ART CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 12 of 16 A child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with the consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Sperm/ oocyte donors shall have no parental rights or duties in relation to the child, and their anonymity shall be protected except in regard to what is mentioned under item 3.12.3.
18. In view of the above guidelines, it is clear that till date there is no codified law of India on surrogacy and there is also no piece of law which bars the agreements pertaining to surrogacy. It is provided by Indian Council for Medical Research in the year 2005, Assisted Reproductive Technology procedures which itself recognizes the child born through ART procedure be the legitimate child of the Intended Father and Intended Mother and that the surrogate mother or sperm/oocyte donor shall have no parental right over the child. The presumption has been raised towards the legitimacy of the child as the child of a couple, born within wedlock, with the consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. It is also clear that surrogate may be relative friend or any other person willing to undergo pregnancy. It is also clear that all parties entering into contracts should be Major. Therefore, parties are governed by agreement under the provision of Contract Act.
CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 13 of 1619. In the present case also at the time of execution of surrogacy agreement dated 23.09.2013 i.e. Ex.PW1/1, all the parties were major and they were competent to enter into the Contract and to my mind there was no force or coercion by either of the parties at the time of entering into the Contract which was entered keeping in view of the Guidelines, 2005. Defendants have specifically admitted the execution of the agreement before this Court on 05.02.2015 and they have given their statement on oath. At this stage, it would be relevant to mention Section 212 of the Indian Evidence Act which makes conclusive proof of legitimacy and in order to rebut the presumption, the parties had entered into Surrogacy Agreement Ex.PW1/1. A report dated 04.07.2014 of Dr. Sunita Kinger (Embryologist, NOVA IVI Fertility) shows that plaintiffs have undergone surrogacy treatment with husband's sperm and donor eggs and the treatment was done at Nova IVI Fertility Safdarjung Enclave under Dr. Nalini Mahajan. A further report dated 04.07.2014 of Dr. Nalini Mahajan (Clinic Director) shows that plaintiffs have undergone surrogacy treatment and surrogated Mrs. Maili Tamang i.e. defendant no.1 has delivered female baby at Max Hospital, Saket, New Delhi. As per birth certificate issued by South Delhi Municipal Corporation, a girl child namely Arisha Verma was born on 02.06.2014 and name of mother has been shown as Anjali Verma and name of father CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 14 of 16 as Rajeev Verma i.e. both plaintiffs. In these circumstances, it is clear that all parties have performed their obligations. Defendant no.1 has specifically deposed that she had entered into surrogacy agreement with the plaintiff and gave birth to a female child on 02.06.2014 and she had performed her part of agreement. Defendant no.2 also admitted the execution of surrogacy agreement.
20. Hence, in the above said circumstances, it is crystal clear that Ms. Maili Tamang i.e. defendant no.1 i.e. surrogate delivered a female on 02.06.2014 under the surrogacy agreement with the consent of her husband i.e. defendant no.2. Plaintiff no.1 is biological/ genetically father of the baby girl in view of surrogacy agreement and the transplantation of embryo in the uterus of defendant no.1 through IVF process using the sperm of the plaintiff no.1 and not of the defendant no.2. The baby had already been handed over to plaintiffs.
21. In view of the discussions made above and admission of defendants in their written statement as well statement before this court, this court holds that the plaintiffs are entitled for a decree under Order 12 Rule 6 CPC. It is declared that plaintiff no.1 i.e. Sh. Rajeev Verma is legal and biological/ genetically father of baby girl Arisha Verma born on 02.06.2014 at Max Hospital, Saket, New Delhi. The CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 15 of 16 defendants are further directed and restrained from acting contrary to the terms of surrogacy agreement dated 23.09.2013 which is Ex.PW1/1, which will constitute part of the decree. The application is disposed off accordingly. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Deepak Wason) JSCCcumASCJcumGJ South District, Saket Courts, New Delhi.
08.09.2015 CS No.86/2014 Mr. Rajeev Verma & Anr. Vs. Mrs. Maili Tamang & Anr Page 16 of 16