The Punjab and Haryana high court has granted guardianship of a four-year-old surrogate boy to a single NRI father living in Australia.
The high court bench of justice Anupinder Singh Grewal ordered that the single NRI father would be the sole guardian of the child. The HC bench said the father will have custody of the child and would further decide whether the boy will remain in India or Australia.
The boy was born in December 2019. In June 2022, the NRI father was refused visa by the Australian Embassy on the grounds that the child was born through surrogacy in India, with one commissioning parent, and the laws in India were unclear and therefore, a declaration be obtained from a court which confirms that the father can have the legal custody of the child and can take the child from India. It also sought a declaration that no other parties involved in the surrogacy arrangement, including the person who donated the egg, have any legal right on the boy.
The Australian Embassy’s communication had come in the wake of the Surrogacy (Regulation) Act-2021, which came into force on January 25, 2022, as per which neither an unmarried woman nor a single man is permitted to adopt surrogacy under the 2021 law.
The surrogate mother and her husband had supported the petition. But a plea filed before a Punjab district court came to be dismissed as the lower court had ruled that neither the clinic nor the surrogate mother had a Punjab address. Hence, it did not have territorial jurisdiction. The high court found the plea maintainable that both sides of the families were residents of Punjab.
{{/usCountry}}The surrogate mother and her husband had supported the petition. But a plea filed before a Punjab district court came to be dismissed as the lower court had ruled that neither the clinic nor the surrogate mother had a Punjab address. Hence, it did not have territorial jurisdiction. The high court found the plea maintainable that both sides of the families were residents of Punjab.
{{/usCountry}}The court observed that when the issue for consideration before the court involves the rights of a child, the court has parens patriae (parent of the nation) jurisdiction and it is of paramount importance for this court to safeguard the interest of the child, keeping in view his welfare and issue necessary directions in this regard.
“The instant case depicts a peculiar and an unprecedented situation. The precedents or the judicial pronouncements, where it has been held that the best interest and welfare of the child has to be kept in mind, are in the backdrop of the battle of custody of the child between the parents while here it is only the biological father who is seeking a declaration that he is the sole legal guardian of the child,” the bench observed taking note of declaration from the surrogate mother and her husband, who had supported the petition.
The court further said in the battle of custody, often the opinion of the child is taken into account provided he or she is mature enough to make an individual choice. “... The child in the case is four-year-old and the sole claimant to the custody and legal guardianship is the father and the minor child is not capable of making an informed decision in this regard,” the bench remarked adding that the father, who is a single parent would be in a better position to provide education, material comforts and moral support for the proper upbringing of the child.
The high court also found that the 2021 law is prospective and since the boy was born in 2019, this case would not come in the ambit of provisions of the law, which bars surrogacy in the case of a single man.