Delhi District Court
Dr. Normann Witzleb vs Jyotshana Mandal & Anr. on 18 November, 2011
Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
C.S No. 143/2011
Dr. Normann Witzleb
S/o Mr. Gunter Witzleb,
ErnstReuterStr. 13
55232 Alzey
Germany.
Presently at:
The Residence
R53, Greater KailashI,
New Delhi.
.....Plaintiff
Versus
1. Mrs. Jyotshana Mandal,
W/o Mr. Santosh Mandal,
Resident of 102/8, Garhi,
East of Kailash,
New Delhi - 110065.
2. Mr. Santosh Mandal,
S/o Sh. Raghunath
Resident of 102/8, Garhi,
East of Kailash,
New Delhi - 110065.
.....Defendants
Suit Presented on : 21.05.2011
Date of Institution : 23.05.2011
Decision Reserved on : 31.10.2011
Date of Decision : 18.11.2011
CS No. 143/11 Page 1 of 16
Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
JUDGMENT
(under order XV CPC on suit for declaration) 1.1 (Case of plaintiff) - Plaintiff Dr. Normann Witzleb, a bachelor, born on 16.9.1966, is having dual citizenship of Germany and Australia. He wanted to get marry for a long time but he has not been able to find right match, he crossed the age of marriage and he sees no hope of getting married in near future. He was desperate to have his own child and wanted to have the child at an age, when he is able to take care of it and is not too old.
1.2 Defendant No. 1 Mrs. Jyotshana Mandal, aged 33 years, Indian National and defendant No. 2 Mr. Santosh Mandal, aged 40 years, also an Indian, are married couple, they are wife and husband respectively, they live in Garhi, East of Kailash, New Delhi.
2.1 In the month of June 2010, the plaintiff visited India, heard about ART (Assisted Reproductive Technologies) clinics and procedure such as IVF (In Virto Fertilization), which is legal in India and there are various ART clinic in operation in India. The plaintiff could see a ray of hope of being a father and having his own child. He searched and able to find an ART clinic in Delhi, he visited there and discussed his desire with the specialist doctor, then various investigations were carried by the concern doctor at ART clinic, he was advised the process of ART as IVF vis a vis the modalities and the formalities.
2.2 Thence, the plaintiff, the defendant No. 1, her husband defendant No. 2 as a confirming party entered into gestational surrogacy agreement dated 16.08.2010 (now Mark A), the plaintiff is the first party of the agreement, the CS No. 143/11 Page 2 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
defendant No. 1 is the second party and the defendant No. 2 is the third party of the agreement; whereby the plaintiff is the 'Intended Father' and the defendant No. 1 agreed to act as 'surrogate mother', the defendant no.3 as 'confirming party' that she(defendant no.1) will give birth to a child for the plaintiff by way of embryo transfer in the uterus of defendant No. 1 through IVF process. It was agreed specifically, for all intents and purposes, that the plaintiff/intended father shall be the legal father and natural guardian of the child and the defendants shall have no say, they will not raise any objections with regard to the intended father, to be parent of the child. The agreement also contains covenants of full financial support to defendant No. 1, during the period of pregnancy vis a vis medical related expenses. Besides the agreement certain other documents were also executed between the parties to give effect to the gestational surrogacy agreement. Paragraph 14 of the plaint reproduces the obligations undertaken by defendant No. 1 under the agreement and paragraph 15 of the plaint reproduces certain clauses of surrogacy agreement in respect of rights of the plaintiff with respect to custody of child to be born out of surrogacy agreement and to be binding on the parties viz a viz their obligations.
2.3 Since there is no specific legislation, which governs surrogacy, in India, however, there are guidelines for ART clinics formulated by Indian Council of Medical Research/National Academy of Medical Sciences (ICMR/NAMS) and a report of Law Commission of India being Report No 228 which are being used as guidelines for regulating Surrogacy in India. The agreement was entered between the parties pursuant to compliance of such guidelines, to ensure welfare of surrogate mother and the child to be born out of the said arrangement.
CS No. 143/11 Page 3 of 16Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
2.4 The defendant No. 1 had entered into gestational surrogacy agreement to conceive, carry and give birth to the child for the plaintiff, out of her own free will and violation and the defendant No. 2, husband of defendant No. 1, has also given his unequivocal consent and permission to her to become surrogate and fulfill her obligations, as agreed in the gestational surrogacy agreement, towards the plaintiff.
2.5 Pursuant to such surrogacy agreement, the defendant No 1 went through ART process (i.e., by which embryo was transferred in the uterus of the defendant No. 1 through IVF and the sperm of the plaintiff was used for developing the embryo) and then she gave birth to a baby boy (now namely Til Jayasiri Witzleb) on 02.05.2011 and the plaintiff is biological/genetical father of the baby boy and legal parents/guardians in terms of agreement. As per terms of agreement, the defendants fulfilled their obligation and had given custody of the baby boy to plaintiff.
2.6 The defendant No. 1, given birth to a baby boy on 02.05.2011 because of surrogacy agreement and the baby is biological son of the plaintiff but simultaneously the defendant No. 1 has delivered of baby during subsistence of her marriage with the defendant No. 2, and as per presumptions under the Indian law, the defendant no.2/husband of defendant No. 1 is father of the said child till such presumption is refuted and because of such presumption, it is necessary for the plaintiff to seek a declaration to the effect that the plaintiff is biological / genetical father of the baby boy because of surrogacy agreement and the transplantation of embryo in the uterus of defendant no. 1 through IVF process using sperm of the plaintiff and that not of the defendant No. 2. In the CS No. 143/11 Page 4 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
absence of such declaration, it will be difficult for the plaintiff to refute the legal presumption under the Indian law, that is why the declaration is being sought, which is also in the interest/welfare of the child, since it touches the aspect of legitimacy. The plaintiff has apprehension that the defendants may claim custody of baby and stake their claim. Hence, the present suit for declaration to declare the plaintiff is legal and biological / genetically father of the boy Til Jayasiri Witzleb and also that the defendant No. 2 is not father of the baby boy vis a vis further directions to the defendants that they shall not act in contravention of terms of agreement dated 16.08.2010.
3. (Defendant no.1 and 2's case) : The defendant no. 1 and defendant no. 2 filed their joint written statement, there are three features, some are admitted facts, some facts have been denied specifically as well as for want of knowledge and many facts were not in the knowledge of defendants. The facts mentioned in paragraphs 1.2, 2.2 and 2.5, above have been admitted by the defendants. The defendants have no knowledge about the facts compiled in paragraphs 1.1, 2.1 and 2.3, above. The facts of paragraph 2.4, above, have been admitted to the extent that there was surrogacy agreement and a baby boy was delivered by the defendant no. 1 but the defendants were not aware about legal provisions of law or the procedure adopted for surrogacy. To say, the defendants admit about their surrogacy agreement (Mark A) with the plaintiff, the defendant no. 1 was surrogacy mother and defendant no. 2 is a confirming party to such agreement. However, they are not aware about the statutory provisions governing surrogacy arrangements or the law prevalent in this regard in the country, but they were explained the gestational surrogacy agreement is not illegal in India vis-a-vis the obligation of the plaintiff towards the defendant no.1, including the financial CS No. 143/11 Page 5 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
obligations, the defendants entered into an agreement. They are also not aware and they have no knowledge as to when plaintiff visited India or he learned about ART procedure such as IVF or its clinics or as to where the plaintiff had gone to specialist for necessary consultancy. Since the baby boy has been delivered by defendant no. 1 on 02.05.2011 and baby boy has been handed over to the plaintiff for all intents and purposes, vis-a-vis the plaintiff being biological father of baby boy, nothing remained or left, therefore, it is baseless to say that plaintiff has apprehension that the defendants may claim custody of baby and stake their claim in future. So far declaration is concerned, now it is a matter between the plaintiff and the Court, the defendants have nothing to submit. The suit is liable to be dismissed.
4. (Statement of defendants)- On completion of pleadings of the parties, the defendant no. 1 and the defendant no. 2 were examined under order X CPC, during in camera proceedings, both the defendants reasserted their stand taken in the written statement, with specific assertion that the defendant no. 2 is a confirming party to the surrogacy agreement, whereby the defendant no. 1 agreed to bear a child by gestational surrogacy and during that tenure, he (defendant no. 2) had not co-habited with the defendant no. 1, so that for all practical purposes, the intent and purpose of agreement can be achieved.
5.1 (Findings): The contentions of the parties are assessed in the light of pleadings, the statement of defendants, they have admitted the pleadings except they are going to lay any claim on the child in future and their ignorance on certain points of law or procedure. There is no codified law on surrogacy in India, in that eventuality whether the surrogacy agreement between the parties is CS No. 143/11 Page 6 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
valid? There is an occasion to go through the provisions of Indian Contract Act, the Indian Evidence Act, besides, the precedent on the land of India under the name Baby Manji Yamada vs Union of India (UOI) & Anr., Writ Petition (C) No. 369 of 2008 decided on 20.9.2008. In addition, there is also an occasion to go through the Report no.228 of Law Commission of India, Government of India; Draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008, its introduction, National Guidelines on Accreditation Supervision and Regulation of ART Clinic in India, 2005, which are guidelines to deal with the matter of surrogacy. In order to bring the entire subject at one instance, the relevant provisions and articles are produced hereunder:-
Section 10 of Indian Contract Act 1872: 'What agreements are contracts - All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the present of witnesses, or any law relating to the registration of documents.' Section 212 of Indian Evidence Act 1872: 'Birth during marriage, conclusive proof of legitimacy - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other any any time when he could have been begotten.
Report no.228, Section I - Introduction Surrogacy - meaning "1.3 The word 'surrogate' has its origin in Latin 'surrogatus', past participle of 'surrogare', meaning a substitute, that is, a person appointed at act in the place CS No. 143/11 Page 7 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
of another. Thus a surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman.'' "1.4 The Black' Law Dictionary categorizes surrogacy into two classes:
'gestational surrogacy' and 'traditional surrogacy'. They are defined as follows:
'Gestational surrogacy- A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child.' 'Traditional surrogacy - A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for another person."
"1.5 'Gestational surrogacy' is total in the sense that an embryo created by the process of IVF is implanted into the surrogate mother. 'Traditional surrogacy' may be called partial or genetically contracted motherhood because the surrogate mother is impregnated with the sperm of the intended father making her both the genetic and the gestational mother; the child shares make-
up of the commissioning father and the surrogate mother."
Section II - The Draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008 "2.3. The Bill provides that a foreigner of foreign couple not resident in India or a non-resident Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after pregnancy till the child is delivered to the foreigner or foreign couple or the local guardian. It is further provided that the commissioning parents or parent shall be legally bound to accept the custody of CS No. 143/11 Page 8 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence. A surrogate mother shall relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic parents/parent of the body."
"2.4 The Bill also provides that a child born to a married couple or a single person through the use of ART shall be presumed to be the legitimate child of the couple or the single person, as the case may be. If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the people."
Section III - Seminar on 'Surrogacy -
'3.5
(a) Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To determine the legality of surrogacy agreements, the Indian Contract Act would apply and thereafter the enforceability of any such agreement would be within the domain of section 9 of the Code of Civil Procedure (CPC). Alternatively, the biological parent/s can also move an application under the Guardian and Wards Act, 1980 for seeking an order of appointment or a declaration as the guardian of the surrogate child. X X X
(c) Under Section 10 of the Contract Act, all agreements are contracts, if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be CS No. 143/11 Page 9 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
void. Therefore, if any surrogacy agreement satisfied these conditions, it is an enforceable contract. Thereafter, under section 9, CPC, it can be the subject of a civil suit before a civil court for adjudication of all disputes relating to the surrogacy agreement and for a declaration/injunction as to the relief prayed for.
Section IV -
"....The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangement and prohibit commercial ones."
National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, by Indian Council of Medical Research 1.2.22 IVF-ET (In Vitro Fertilization-Embryo Transfer) - "In Vitro Fertilization - Embryo Transfer (IVF-ET) is the fertilization of an ovum outside the body and the transfer of the fertilized ovum to the uterus of the woman."
3.4.8 'To make the couple aware, if relevant, that a child born through ART has a right to seek information (including a copy of the DNA fingerprint, if available) about his genetic parent/surrogate mother on reaching 18 years, excepting information of the name and address - that is, the individual's personal identity - of the gamete donor or the surrogate mother. The couple is not obliged to provide the information to which the child has a right, on their own to the child when he/she reaches the age of 18, but no attempt must be made by the couple to hide this information from the child should an occasion when this issue becomes important for the child.' 3.5.4 'A surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. While registering she must mention that she is a surrogate mother and provide all the necessary information about the CS No. 143/11 Page 10 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
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. All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be done by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary compensation from the couple for agreeing to act as a surrogate; the exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother. An oocyte donor cannot act as a surrogate mother for the couple to whom the ooctye is being donated.' 3.5.10 'No ART clinic shall offer to provide a couple with a child of the desired sex."
Surrogacy: General Considerations 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 records will be maintained in the clinic) that the child is theirs.
Rights of a child born through various ART Technologies 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 CS No. 143/11 Page 11 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
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.
3.12.3 'Children born through the use of donor gametes shall not have any right whatsoever to know the identity (such as name, address, parentage, etc.) of their genetic parent(s). A child thus born will, however, be provided all other information (including that mentioned in Section 3.4.8) about the donor as and when desired by the child, when the child becomes an adult. While the couple will not be obliged to provide the above "other" information to the child on their own, no deliberate attempt will be made by the couple or others concerned to hide this information from the child as and when asked for by the child.' 3.16 Legal Issues 3.16.1 - Legitimacy of the child born through ART - A child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Sperm/oocyte donors shall have no parental right or duties in relation to the child, and their anonymity shall be protected except in regard to what is mentioned under item.
3.16.2 Adultery in the case of ART - ART used for married woman with the consent of the husband does not amount to adultery on the part of the wife or the donor. AID without the husband's consent can, however, be a ground for divorce or judicial separation. .....
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5.2 During the course of final arguments, the plaintiff has also placed DNA report (photocopy) of parentage testing procedure report and birth certificate of baby boy, the same have also been considered.
5.3 By reading the statutory provisions of law, report No. 228 of Law Commission of India and the other reports, along with their articles, referred in paragraph 5.1 above, two conclusions are drawn, firstly, there is no piece of legislation or codified law of India on surrogacy and secondly there is also no law, which bars the agreements or arrangements pertaining to surrogacy. The surrogate may be relative, friend or previous stranger and intending parent may be a single male or a male homosexual couple or a female unwilling to undergo pregnancy may be intending parent. Therefore, the parties are governed by their agreement, under the provisions of Contract Act vis a vis other allied ethical and legal positions. At the time of surrogacy agreement dated 16.08.2010 (Mark A), the plaintiff was aged about 44 years and defendant No. 1 was of 33 years of age and defendant No. 2 was of 40 years of age, in terms of Section 11 of Indian Contract Act, 1872 the parties to the agreement were competent to contract. From the statement of defendants as well as the contents of agreement (Mark A), the parties have not only understood the terms and conditions of agreement, but the same was entered keeping in view the guidelines 2005. The plaintiff is bachelor, as on today he is aged about 45 years, he does not see any prospectus of his marriage and it appears from his plaint that he apprehends some other factors age, medically or otherwise that if he wants to be a father, he has no other option but to go for surrogacy arrangement so that the scientific tools available, in this advanced Hi-tech time, may be availed to fulfill his desire of a parent; which is generally a natural instinct of all creature of the planet. Thus CS No. 143/11 Page 13 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
the agreement (Mark A) is not hit by Section 10 of the Indian Contract Act, 1872.
Simultaneously, Section 212 of Indian Evidence Act makes conclusive proof of legitimacy and in order to rebut the presumption, the parties had entered into the gestational surrogacy agreement (Mark A), which was also later acted upon, so that the defendant No.1 may act as surrogate mother with the consent of her husband/defendant No. 2 as a confirming party and the plaintiff, biological/genetical father, of the child to be born through ART process by the embryo transferred into the uterus of defendant No. 1 through IVF. The baby boy was born on 02.05.2011 at Paras Spring Meadows Hospital, F-44, East of Kailash, New Delhi and birth certificate No. 1082079 (in the name of child Til Jayasiri Witzleb) has also been issued by Municipal Corporation of Delhi under section 17 of Registration of Births and Deaths Act, 1969 showing the name of plaintiff as a father and of defendant No. 1 as surrogate, and the parentage testing procedure report/DNA fingerprinting concludes probability of paternity of 99.9549257%. The IVF procedure was carried by Doctor Shivani Sachdev Gaur, MD, DNB, M.R.C.O.G., U.K, Fertility Specialist and Gynecologist of SCI Healthcare, A-28, Ground Floor, Kailash Colony, New Delhi, India and certificate dated 03.05.2011 has also been issued by the Doctor to that effect that under her fertility treatment, of plaintiff, with egg donation and surrogacy, egg collection was done on 24.08.2010. Mr. Normann's sperm was used to inseminate anonymous donour eggs. Embryo transfer was on 29.08.2010 and another certificate by ISIS Hopital, IVF and Multi specialty has also been filed that male baby was delivered at Paras Spring Meadows Hospital, F-44, East of Kailash, New Delhi at 8.37 am on 02.05.2011 by Ms. Jyotshana Mandal/defendant No. 1. To say CS No. 143/11 Page 14 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
that male baby child namely Til Jayasiri Witzleb was born and delivered by defendant No. 1, pursuant to surrogacy arrangement and agreement dated 16.08.2010 (Mark A) by following aforementioned process and technique. Further, in terms of such agreement the child has also been handed over by the defendant no.1 to the plaintiff. The parties have also performed their other obligations.
6. Therefore, by reading totality of circumstances together, in the form of pleadings of the parties, position of law, the scientific technique and tools available and referred in the documents/articles/reports inclusive of agreement (Mark A) between the parties, it is apparent that defendant No. 1 Smt. Jyotshana Mandal, surrogate delivered a baby on 02.05.2011 under the surrogacy agreement, entered (with the consent of her husband Sh. Santosh Mandal, defendant No. 2) with plaintiff and plaintiff is biological / genetical father of the baby boy because of surrogacy agreement and the transplantation of embryo in the uterus of defendant no. 1 through IVF process using sperm of the plaintiff and that not of the defendant No. 2. The baby has also been handed over to the plaintiff. Therefore, the plaintiff, genetical/biological father of the baby boy namely Til Jayasiri Witzleb is also his legal father and defendant No. 2 is not the father of the said baby. The defendant No. 1 has handed over the child to the plaintiff since she had acted as a surrogate the defendants have no right on the child nor they may claim any such right against the plaintiff. The plaintiff has established the suit. He is entitled for the decree.
7. Accordingly, it is declared that the plaintiff, Dr. Normann Witzleb is legal and biological / genetically father of the boy Til Jayasiri Witzleb, born CS No. 143/11 Page 15 of 16 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.
on 02.05.2011 at Paras Spring Meadows Hospital, F-44, East of Kailash, New Delhi, India and also that the defendant No. 2 is not father of the baby boy. The defendants are further directed and restrained from acting contrary to the terms of gestational surrogacy agreement dated 16.08.2010(Mark A), which will constitute part of the decree. Both the parties will bear their own cost.
Decree Sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (INDER JEET SINGH)
on 17th November, 2011 Additional District Judge 03,
South District, Saket Courts,
New Delhi
S
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