Bombay HC rules sperm and egg donors cannot claim biological parenthood

Sperm and egg donors cannot have legal rights over a child and cannot claim legal parenthood according to a new judgment of the Bombay High Court. This decision came as the court granted visitation rights to a 42-year-old woman to her 5 years old twin daughters. The woman had come to court asking for an intervention because the children were born out of surrogacy. Her children were living with her husband and her younger sister, who provided the eggs.

The husband of the petitioner contended that since the petitioner’s sister donated her eggs, she rightfully entitled to being considered as the biological mother of the twins and hence, the petitioner could not lay any legal claim to the children.

However, this argument was rejected by Justice Milind Jadhav who was on the bench alone. He explained that although the petitioner’s younger sister was the petitioner’s egg donor, she cannot be regarded as a biological parent of the twins. The court also highlighted that her role was only that of a voluntary donor and that as a result, her status could be hardly higher than that of a genetic mother, but not a legal one.

An advocate assigned to the case said that the surrogacy contract between the separated couple was signed in 2018 when the Indian government had not passed the Surrogacy (Regulation) Act of 2021. Thereby the agreement is implemented according to the guidelines as set by the Indian Council of Medical Research ICMR in 2005. The court pointed out that under the ICMR guidelines the donor and the surrogate mother must relinquish all their parental rights. As such, in this case, the twins are legally of the petitioner and her husband.

The High court said “Under the guideline, it is clearly stated that the sperm/oocyte (egg) donor shall not have parental rights or duties in relation to the child and in that view of the matter, the younger sister of the petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters.”

According to the plea, the petitioner and her husband could not conceive naturally, so the petitioner’s sister opted to contribute her eggs. In December of 2018, a surrogate became pregnant with a donated egg and the twin girls were born in August of 2019.

The petitioner’s sister and her family had a tragic road accident in April 2019 that resulted in the death of the husband and the daughter. The petitioner and her husband lived together from August 2019 until March 2021. Nevertheless, in the March of 2021, there was a marital disagreement and her husband took the children to another apartment without informing her.

The petitioner’s husband stated that the wife’s sister, who was the egg donor, had depression after the accident and had been living with him to help in taking care of the twins. The petitioner then reported a police case and applied for an interim visitation order through a magisterial court. Her application for asylum was declined on September the 13th, 2023 and she had to seek a review by the high court.

The wife stated that her sister had only provided the eggs for the process of in vitro fertilization and had never been a surrogate mother of the twins, therefore she had no legal rights or responsibilities regarding the twins. From the high court, it was determined that the surrogacy agreement signed in 2018 was between the petitioner, her husband, and the doctor who was involved in the process but not the egg donor.

Case Analysis: Impact of Sperm and Egg Donors on Parental Claims

The high court based its ruling on the fact that the 2018 surrogacy agreement was between the intended parents, the surrogate mother, and the doctor, where the petitioner, her husband, and the doctor signed the document.The high court said “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.”

Justice Jadhav pointed out that the lower court was unanimous in denying the wife visitation rights without proper consideration and therefore the orders passed by the said court were ineffective. The high court of the case set aside the ruling of the lower court and ordered the husband to provide the petitioner with three hours physical access and visitation rights with the twins every weekend.

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