Egg, sperm donors have no parental right on child: What Bombay HC held

Sub: Science

Sec: Health

Context:

The Bombay High Court on reiterated that a sperm or egg donor cannot claim to be a biological parent of a child born through their gamete, and will have no legal right.

Background:

This came in a ruling in the case of a 42-year-old woman who was seeking custody of her twin-girls delivered through ‘altruistic’ surrogacy.
The children were in the joint custody of their father and the egg-donor. The ruling discussed the rights and entitlement of a surrogate mother vis-à-vis a biological mother, and that of an egg donor to seek access and custody of the children.

Complicated family dynamics:

The younger sister of petitioner was the egg donor whereas the surrogate mother was a “separate anonymous woman”.
Just a few weeks after donating her eggs, she had lost her own daughter and husband in a tragic accident.

Rival contentions

The mother argued the daughters were deemed to be legitimate children of the couple within wedlock, and all rights of biological parents be vest in them.
The estranged husband, however, claimed that since his sister-in-law was an egg donor, she had a legitimate right to be called as a biological parent of the twins.

What the law says:

The law on surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology (ART) (Regulation) Act, 2021.
These laws define surrogacy to mean “an 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 surrogate.”
Law clearly specifies that the intending parents are to be considered biological parents of the surrogate child.
2005 National Guidelines on Assisted Reproductive Technologies (ART) state that the “donor has to relinquish all parental rights”.

Surrogacy regulations:

The Surrogacy Act, 2021 and subsequent regulations provide for prohibition of commercial surrogacy.
The act promotes ‘altruistic’ surrogacy, especially through close relatives, in which the woman acting as a surrogate cannot receive any monetary remuneration or compensation beyond medical expenses.
The laws stipulate punishments – up to Rs 5 lakh for first offence and jail-term of ten years, and fine of Rs 10 lakh for subsequent offences for exploitation of surrogate mothers, and children born through surrogacy.

Bombay HC’s ruling

The Bombay HC, interpreting the ICMR guidelines, held that the twin girls were daughters of the petitioner and her estranged husband, as they were born from their wedlock and with their consent.
It said “there was no ambiguity whatsoever that it is the petitioner along with the respondent husband signed the surrogacy agreement” and they were “intending parents.”