Delhi District Court
Dr. John Lancelot Leonardo vs . Sunita & Another on 8 June, 2012
Dr. John Lancelot Leonardo Vs. Sunita & Another
IN THE COURT OF MS. SHREYA ARORA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No. 149/12
Case ID No. 02406C0100292012
Dr. John Lancelot Leonardo
S/o Mr. Leonito Y. Leonardo,
R/o 63, Hamilton Terrace,
Apt. 61, New York City,
New York10031.
Presently at
Apartment 18, B18,
Greater KailashI,
New Delhi110 048. ...............Plaintiff
Versus
1. Sunita
W/o Mr. Rakesh Googyal,
R/o 102/8, Garhi,
East of Kailash,
New Delhi110 065.
2. Rakesh Googyal
S/o Sh. Shambhu Dayal,
R/o 102/8, Garhi,
East of Kailash,
New Delhi110 065. ..............Defendants
Date of Institution : 01.05.2012
Date of reserving the Judgment : 01.06.2012
Date of pronouncement : 08.06.2012
Decision : Decreed
Suit no. 149/12 Page 1 of 5
Dr. John Lancelot Leonardo Vs. Sunita & Another
SUIT FOR DECLARATION
JUDGMENT
1. This is a suit for declaration. The plaintiff has sought a decree of the following nature:
"(a) decree of declaration in favour of the plaintiff whereby declaring that the plaintiff is genetic/ biological father of the said twins i.e. baby boy named Joseph Stolinski Leonardo and baby girl named Juliana Stolinski Leonardo and the defendant No.2 is not the father of the said twins and;
(b) order directing that the defendant shall not act in contravention to the terms of surrogacy agreement dated 18th August, 2011 and the parties shall remain bound by the terms of the agreement, and;
(c) order terminating all parental rights and obligations of defendant No.1 & 2 over the said twins i.e. baby boy named Joseph Stolinski Leonardo and baby girl named Juliana Stolinski Leonardo;"
2. Pithily stated, the case set up by the plaintiff is that he is a citizen of United States of America and is residing at 63 Hamilton Terrace, Apt 61, New York City, New York 10031. He had entered into one surrogacy agreement on 18.08.2011 and at the time of entering into that agreement he was resident of 110 W. 86th Street, Apt 4E, New York, NY 10024 USA. This agreement was entered into between the plaintiff on the one hand and defendant no.1 on the other hand. The defendant no.2, who is the husband of defendant no.1, was a confirming Suit no. 149/12 Page 2 of 5 Dr. John Lancelot Leonardo Vs. Sunita & Another party. As per this agreement arrangement was arrived at between the plaintiff and the defendants that the defendant no.1 will act as a surrogate mother and will give birth to a child/children of the plaintiff by way of an embryo transfer in the uterus of the defendant no.1 through IVF process. It was categorically agreed that the plaintiff shall be the legal parent and natural guardian of the child and the defendants shall not raise any objection to the parentage of the plaintiff. The plaintiff also give full financial support to the defendant no.1 during the term of pregnancy and complied with all the conditions stipulated in the said agreement with respect to financial terms and all medical related expenses. As per this agreement, the defendant no.1 had agreed to conceive, carry and give birth to the child of the plaintiff out of her own free will and volition and defendant no.2, being the husband of the defendant no.1 had given his unequivocal consent and permission to her to become a surrogate and fulfill her obligation in this behalf, as agreed in the said surrogacy agreement. The detailed terms and conditions in this respect were stipulated in the agreement. Both the parties carried out their respective obligation under the agreement and defendant no.1 gave birth to twins i.e. baby boy named Joseph Stolinski Leonardo and baby girl Juliana Stolinski Leonardo on 11.04.2012 at Eden Hosital, East of Kailash, New Delhi.
3. The plaintiff states that since these children are born under the said surrogacy agreement and there is no denial of the fact that he is the genetic and biological father of the twins however since defendant no.1 has given birth to these Suit no. 149/12 Page 3 of 5 Dr. John Lancelot Leonardo Vs. Sunita & Another children during the subsistence of her marriage with the defendant no.2, in view of the presumption under the Indian Law that the husband of defendant no.1 is the father of the said children, till the presumption is refuted. As such the present suit is filed for declaration as mentioned above.
4. Summons were issued to the defendants. They appeared and filed a joint written statement. In this written statement, they have accepted each and every averment made in the suit including entering into the said agreement and giving of birth to twins of the defendant no.1 as surrogate. The defendants state that they have no objection if the custody of the children is given to the plaintiff and the plaintiff is the lawful father/guardian of these children. Both the defendants gave their statement on oath before the Court on the said lines on 01.06.2012.
5. There is no specific legislation/law which governs surrogacy in India. However, there are guidelines of Indian Council of Medical Research and National Academy of Medical Sciences. The Law Commission of India has also given its Report No.
228. According to the national guidelines for Accreditation/Supervision of ART Clinics, 2005 by ISMR/NAMS, the surrogate mother is not considered to be the legal mother. My predecessor under similar circumstances pass the decree of declaration in Suit No.144/2011 titled Hassan Ezadi Chamkhorami & Anr v. Mrs. Radha & Anr vide order dated 10.03.2011. Though this order cannot be treated as a precedent, however, having regard to all the aforesaid facts and material placed on record, I have no reason not to Suit no. 149/12 Page 4 of 5 Dr. John Lancelot Leonardo Vs. Sunita & Another take the same view in the present matter also.
6. I am also of the opinion that there is no impediment legal or otherwise in granting the decree as prayed for by the plaintiff, more so when the defendants have accepted the facts leading to conception and delivery of the two children by defendant no.1 as surrogate mother and have also given their no objection to this.
7. Accordingly, the suit is decreed in terms as prayed for by the plaintiff. No order as to costs.
8. Decree sheet be prepared accordingly. Thereafter, file be consigned to the record room.
Announced in the open (SHREYA ARORA)
Court on 08.06.2012 CIVIL JUDGE1 (SOUTH DISTRICT)
(Judgment contains 5 pages.) SAKET COURTS, NEW DELHI
Suit no. 149/12 Page 5 of 5