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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 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.

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."

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 Dr. Normann Witzleb vs Jyotshana Mandal & Anr.