Egg donor cannot claim to be biological parent of surrogate child, says Bombay HC

The court allowed a woman to visit her twin girls, 5, who stay with her estranged husband. Her sister, the donor, lives with the man to 'look after the kids.'

Reversing the order of a lower court, the Bombay high court on Tuesday gave visitation rights to a woman to see her twin daughters, 5, who were born via surrogacy.

The woman, in her plea, said her daughters, born via surrogacy, were living with her husband and younger sister, was the egg donor.(Representational Image)

In her plea, the petitioner said that following a marital discord three years ago, her husband moved into another flat without informing her. Later, her sister, the egg donor in this case, began living with the petitioner's husband, she added.

Opposing the plea, the man claimed that his sister-in-law was ‘depressed’ after losing her spouse and daughter in an accident, and moved into his flat to look after the twins.

“Being the egg donor, she (sister-in-law) has a legitimate right to be called the biological parent of the children. My wife has no right over the kids,” he argued.

However, a single-judge bench of Justice Milind Jadhav rejected this contention, with the judge saying that despite being the egg donor, the petitioner's sister had no legitimate right to claim that she is the kids' biological parent.

“As a donor, and a voluntary one, the younger sister may, at the most, qualify to be a genetic mother and nothing more,” the bench noted.

An advocate assigned to assist the bench, pointed out that the estranged couple's surrogacy agreement was signed in 2018, when the Surrogacy (Regulation) Act had not come into force. Therefore, this meant that the agreement would be regulated under the 2005 guidelines of the Indian Council of Medical Research (ICMR).

“The ICMR guidelines clearly state that the donor shall not have parental rights or duties in relation to the child. Therefore, the sister cannot claim to be the biological mother of the twin girls,” Justice Jadhav observed.

“In the surrogacy agreement, it is seen that the petitioner (wife) and Respondent No. 1 (husband) are recognised as the intending parents. At least to a naked eye, there is no ambiguity whatsoever while observing and even concluding that it is the petitioner along with Respondent No. 1 who signed the surrogacy agreement as intending parents,” he added.

Remarking that the lower court's September 2023 order denying interim visiting rights to the woman lacked ‘proper application of mind,’ the high court directed the petitioner's husband to allow her physical access to the twins for three hours every Saturday and Sunday.

(With PTI inputs)