Delhi District Court
Mr. Hassan Ezadi Chamkhorami vs Mrs. Radha on 10 March, 2011
IN THE COURT OF MS. ANU AGGARWAL:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No.144/11
ID no. 02406C0012542011
1. Mr. Hassan Ezadi Chamkhorami
S/o Sh. Rajabali Ezadi Chamkhorami,
R/o Harzburger STR19
30419, Hannover, Germany.
2. Ms. Bahare Ezadi Chamkhorami,
W/o Mr. Hassan Ezadi Chamkhorami
R/o Harzburger STR19,
30419, Hannover, Germany.
Presently at:
A2/29, 3rd Floor,
Rajouri Garden,
New Delhi110027. ...Plaintiff
Versus
1. Mrs. Radha
W/o Mr. Awadhesh Singh,
R/o 39, Maila Mohalla,
Sarita Vihar, Khadar,
Delhi.
CS-144/10 Page 18
2. Mr. Swadhesh Singh
S/o Sh. Mahavir Singh,
R/o 39, Mila Mohalla,
Sarita Vihar, Khadar,
Delhi. ... Defendant
SUIT FOR DECLARATION
DATE OF INSTITUTION : 19.01.2011
RESERVED FOR : 05.03.2011
ORDER PASSED ON : 10.03.2011
ORDER:
The present suit has been filed by the plaintiffs for passing decree of declaration in favour of plaintiff no. 1 whereby declaring that plaintiff no. 1 is the biological / genetical father of the baby girl, Pegah Lena and further directed that defendant shall not act in contravention to the terms of the Surrogacy Agreement dated 18.01.2010 and parties shall remain bound by the terms of the agreement.
The facts necessary for disposal of the present suit are as follows: It is the case of the plaintiff that plaintiff no. 1 and 2 are husband and wife and are citizens / residents of Germany.
CS-144/10 Page 18 Defendants no. 1 and 2 are wife and husband and citizens of India. It was further submitted that the plaintiffs are one of the unfortunate couple having infertility problem and are not able to conceive the child by natural process due to medical reasons. It is further submitted that the plaintiff visited India on 07.04.2009 as a tourist and became aware that the advanced ART (Assisted Reproductive Technologies) procedures such as IVF (In virto Fertilization) is legal in India and there are various ART Clinics which are operating in India. The plaintiff visited the clinic and after investigation being carried out on both the plaintiffs by the concerned doctor to know the cause of infertility, the doctor advised the plaintiffs for the process of ART as IVF. After understanding the process and procedure, the plaintiffs entered into the Surrogacy Agreement which was between the plaintiffs on the one hand and the defendant no. 1 on the other hand and the defendant no. 2 was made a Confirming Party to the said Surrogacy Agreement dated 18.01.2010. It was further stated that as per terms of said agreement, the plaintiffs are the intended parents and the defendant no. 1 agreed to act as Surrogate mother. It was agreed that CS-144/10 Page 18 defendant no. 1 will act as surrogate mother and will give birth to a child for the plaintiffs by embryo transfer in the uterus of the defendant no. 1 through IVF process. It was further submitted that as per agreement, the intended mother and the intended father shall be the legal parents and natural guardian of the child and defendant shall have no say and shall not raise any objections whatsoever with respect to the intended mother and intended father being parents of the child. It was further submitted that apart from Surrogacy Agreement, certain other documents were also executed between the parties to give effect to the Surrogacy Agreement and plaintiffs have given full financial support to the defendant no. 1 during the terms of the pregnancy and had also complied with the conditions with respect to the financial terms and all the medical related expenses in terms of the surrogacy agreement. It was further submitted that there is no specific legislation / Laws which governs Surrogacy in India. However there are guidelines for ART clinics formulated by ICMR/NAMS (Indian Council of Medical Research / National Academy of Medical Sciences) and a Report of Law Commission of India being Report no.
CS-144/10 Page 18 228 which are being used as guideline for regulating Surrogacy in India. It is submitted 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 Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The Indian Council of Medical Research (ICMR) has come out with the draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008. It is further provided that the commissioning parents or parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence. A surrogate mother in under obligation to relinquish all parental rights over the child.
It was submitted that defendant no.1 had entered into the Surrogacy Agreement to conceive, carry and give birth to the child for the plaintiffs out of her own free will and volition and defendant no.2 being the husband of the defendant no.1 had given CS-144/10 Page 18 his unequivocal consent and permission to her become the Surrogate and to fulfill her obligation as provided in the Surrogacy Agreement towards the plaintiff. It was submitted that baby girl, Pegah Lena was born under the Surrogacy arrangement through ART process and plaintiff no.1 is the genetical/biological father of the baby girl.
It was further submitted that though there is no dispute and no denial of factum of the plaintiff no1 being the biological/ genetical father of the baby girl, however, since the Defendant No.1 has given birth to the said baby girl during the subsistence of her marriage with the defendant no.2,as such, as per the presumption under the Indian law, the husband of the defendant no.1 is the father of the child till the said presumption is refuted. As Such, Plaintiff has filed the present suit.
The defendants entered the appearance on 9/02/2011 and filed their WS. In Written Statement, the defendants admitted the entire claim of the plaintiffs. The defendants admitted they entered into the Surrogacy Agreement dated 18.01.2010 with the plaintiffs. It was further admitted the by the IVF process, defendant no.1 gave CS-144/10 Page 18 birth to the baby girl. It was further submitted that defendants have fulfilled their obligation under the Agreement by handing over the baby girl to the plaintiffs. It was further submitted that defendants were explained about their right and obligations under the agreement dated 18.01.2010 and were also explained that Surrogacy Agreement are not illegal in India. It was further submitted that defendants have fulfilled their obligations under the Agreement and have nothing to do with either the plaintiffs or the baby girl. It was further submitted that defendant no.1 has given birth to the baby girl under the Surrogacy Agreement and Defendant no.2 is not in any way related to the baby girl born out of the Surrogacy Agreement. It was further submitted that the defendants have no intention of claiming any stake and right over the baby girl born out of the Surrogacy Agreement and further, declaration is a matter between the plaintiffs and the court and defendants have nothing to submit.
India does not yet have a legislation controlling surrogacy. In Manji's case (2002), the Hon'ble Supreme Court of India held that the commercial Surrogacy was legal in India. The Surrogacy Agreements are governed by the contract as entered into by the parties.
CS-144/10 Page 18 The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing 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 commissioning couple or individual before delivery of the child, or divorce between the intended parents and CS-144/10 Page 18 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-144/10 Page 18
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. However, there is no legislation governing the Surrogacy law in India except the guidelines provided by Indian Council for Medical Research in the year 2005 regulating Assisted Reproductive Technology procedures and the 228th report of the Law Commission of India .We will first 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 CS-144/10 Page 18 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 or 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 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.
CS-144/10 Page 18 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-144/10 Page 18 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.
Thus above guidelines as provided by Indian Council for Medical Research in the year 2005 regulating Assisted Reproductive Technology procedures 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.
The presumption has been raised keeping in view the welfare of the child which is of pramount importance. In the CS-144/10 Page 18 absence of the presumption, the question as to the legitimacy of the child, the parental right of the child may arise which would not only be against the welfare of the child but also would also jeopardize the future of the child.
Now, coming to the present case the defendants have admitted the entire claim of the plaintiffs in their Written Statement. The defendants have admitted that defendant no.1 and 2 entered into the surrogacy agreement with the plaintiffs wherein the defendant no..1 agreed to be the surrogate mother and defendant no.2 being the husband of defendant no.1 a confirming party. The defendants further admitted that defendant no.1 has given birth to the baby girl under the Surrogacy Agreement and Defendant no.2 is not in any way related to the baby girl born out of the Surrogacy Agreement. It was further submitted that the defendants have no intention of claiming any stake and right over the baby girl born out of the Surrogacy Agreement and further, declaration is a matter between the plaintiffs and the court and defendants have nothing to submit. The defendants have admitted the execution of Surrogacy Agreement dated 18.01.2010 marked as Ex P/D1/2(OSR), Agreement For Financial terms and condition of Surrogacy dated 18.01.2010 marked as Ex P/D1/3(OSR), CS-144/10 Page 18 Declaration of Surrogate dated 18/01/2010 marked as Exp/D1/4(OSR), Affidavit of Surrogate's Husband dated 18/01/2010 marked as Ex P/D2/5(OSR).
The plaintiffs have also put on record the photocopy of certificate (OSR) of doctor 'Dr. Shivani Sachdev Gour', Fertility Specialist and Gynaecologist, SCI healthcare which certified that plaintiffs have gone for ED & Surrogacy under her care. Plaintiffs have also put on record the embryologist report (OSR), which shows the sperm collection of the plaintiff no.1 for developing the embryo and delivery report dated 24th September, 2010(OSR) which shows that defendant no.1 gave birth to the baby girl pursuant of surrogacy agreement.
Clause 2.2 of the Surrogacy Agreement, ExP/D/2 entered into by the plaintiffs and the defendants read as follows:
2.2 It is clearly understood and unequivocally agreed and confirmed by the parties that the child that the Surrogate shall give birth for the Intended Mother and Intended Father through this surrogacy process shall be born out of CS-144/10 Page 18 the embroyos made for the Intended Mother and shall carry the genes/DNA of the Intended Father and Egg donor thus the child shall genetically and biologically belong to the Intended Father. The Surrogate will only lend her uterus for carrying the pregnancy and giving birth of the child out of the humanitarian ground as the Intended Mother is incapable of carrying pregnancy and giving birth and on the terms and conditions contained therein".
Further, the 'Declaration of Surrogate',Ex P/D/3 also states that the defendant no.1, surrogate mother agreed to carry the pregnancy and give birth to a child conceived via in virto fertilization(IVF) through the union of egg donor and sperms of genetic father so that Mr. Hasan Ezadi Chamkhorami, plaintiff no.1 herein may have a child/children genetically related to her. Therefore, it is clear that the sperms of the plaintiff no.1 were used to develop the embryo, which was then transferred to the uterus of the defendant no.1 and CS-144/10 Page 18 subsequently, defendant no.1 gave birth to the baby girl. Thus, it is the plaintiff no.1 that is genetically related to the baby girl, Pegah Lena born out of the surrogacy agreement and plaintiff no.1 is the biological father of the baby girl. Further, the defendant no.1 has given the statement in the court on oath that the defendant no .1 entered into the surrogacy agreement with the plaintiffs dated 18.01.2010 and defendant no.1 gave birth to the girl child on 24.0902010. The defendant no.1 also gave undertaking that she would be bound by the surrogacy agreement along with the declaration of surrogated dated 18.01.2010. The defendant no.2 also gave the statement in the court on oath the defendant no.1 is the wife of defendant no.2 and defendant no.2 is the confirming party to the surrogacy agreement dated 18.01.2010 and gave his affidavit dated 18.01.2010 for his consent. Defendant no 2 also gave undertaking to abide by the surrogacy agreement and declaration of surrogate dated 18.01.2010 being a confirming party to the Agreement. The statement of plaintiff no.2 was also recorded whereby plaintiff no.2 admitted that the child born out of the surrogacy agreement was handed over to her by the plaintiffs and the child is with her. Plaintiff no.2 has CS-144/10 Page 18 also given the undertaking that she would be bound by the surrogacy agreement and she along with her husband, plainitiff no. 1 would take full care of the child as the mother and the father and would provide all need, love and affection to the child.
In view of the above finding and admission of defendants in their written statement to the claim of the plaintiff, This court passes a decree under order 12 Rule6 CPC in favor of the plaintiffs there by declaring that Plaintiff no.1 is the biological /genetical father of the baby girl. Pegah Lea. The Parties also stands bound by the statement given in the court. Decree Sheet be prepared accordingly. File be consigned to record room.
(Announced in Open (ANU AGGARWAL) Court on 10.3.2011) CIVIL JUDGE02 (SOUTH) CS-144/10 Page 18