Father, kid born via surrogacy seek HC approval to visit Australia
Saurabh Malik
Chandigarh, January 17
In an out-of-the-ordinary case, a three-year-old –– born through a surrogacy arrangement in India –– has moved the Punjab and Haryana High Court, along with the biological father, seeking permission to go to Australia. The matter was brought to the notice of the High Court following objections by the Australian Government to the child’s legal status due to the vagueness of laws in India.
Australia’s take
“Indian legislation in respect of surrogacy is limited. India legalised commercial surrogacy in 2001. However, it still lacks a regulatory framework for the industry.”
Appearing before Justice Sanjay Vashisth’s Bench, counsel for the petitioners prayed that the 35-year-old father should be permitted to take the child to Australia as he was the de facto and de jure guardian. He also told Justice Vashisth’s Bench that there was no objection to the move by the surrogate mother.
She had neither made any claim, nor filed any objection to the father’s move to take the child to Australia. Rather, she and another respondent had already furnished their affidavits in this regard. Referring to the DNA report, dated March 10, 2022, the counsel further submitted that the match was greater than 99.99 per cent, establishing the paternity.
Pointing at the legal position, the counsel added that the child was born in December 2019, before the enactment of the Surrogacy (Regulation) Act, 2021, which came into force on December 25, 2021. The Act, he added, did not operate with retrospective effect.
The counsel also brought to Justice Vashisth’s notice a letter dated June 11, 2022, issued by the Australian Department of Home Affairs, whereby the officers concerned responded to the move by saying that “Indian legislation in respect of surrogacy is limited. India legalised commercial surrogacy in 2001. However, it still lacks a regulatory framework for the industry”.
The letter, the counsel added, further stated that the child was born via a surrogacy arrangement in India with only one commissioning parent. As the laws in India were unclear, a court order was required to be provided, confirming that the “commissioning parent” or the father had the child’s full legal custody, the right to remove him from India and the legal right to determine where he should live.
The letter added that the court order should also stipulate that none of the parties involved in the surrogacy arrangement, including the person donating the egg, had any legal rights to the child. The counsel submitted the observations in the letter had necessitated the filing of the petition.
Taking cognisance of the habeas corpus petition, the High Court today put the Union of India, the surrogate mother and other respondents on notice. Fixing the case for February first week, Justice Vashisth also made it clear that the respondents could file their replies in the matter by the next date of hearing.
