The Bombay High Court on Tuesday ruled that an egg donor, or oocyte voluntary donor, may qualify as a genetic mother but holds no legal right to be recognised as the biological mother of a child. The court’s observation came in a surrogacy case involving two sisters.
The bench, led by Justice Milind Jadhav, delivered its judgement on Tuesday while hearing the plea of a Navi Mumbai-based woman whose husband had taken their twin daughters to Jharkhand without her knowledge. The twins were born via in-vitro fertilisation (IVF) using eggs donated by the woman's younger sister, who now claims to be their biological mother.
The couple, hailing from Jharkhand and married in 2012 under Hindu rites, faced difficulties conceiving. Upon medical advice, they opted for "altruistic surrogacy" through an egg donor. The wife approached her younger sister, who agreed to donate her eggs in January 2019, initiating the IVF procedure.
Just three months later, the sister and her family were involved in a fatal accident on the Agra Expressway, resulting in the loss of her husband and daughter. Approximately four months after the incident, her older sister gave birth to twin daughters.
From 2019 to 2021, the couple and their twins resided together in Navi Mumbai. However, following marital discord, the husband took the children to Jharkhand in March 2021 without informing his wife while she was at work.
Subsequently, the younger sister moved in with the husband and the twins in Ranchi.
Seeking custody and visitation rights for her soon-to-be five-year-old twins, the wife approached the court. Both the husband and the sister opposed her plea. Last year, a lower court rejected the wife's petition.
Advocate Ganesh Gole, representing the wife, contended that the order was based on the incorrect assumption that the egg donor, the wife's sister, was also the surrogate mother of the twins.
The husband argued that since the sister was the egg donor, she had a legitimate claim to be recognised as the biological parent, and that his wife had no claims over the children.
An advocate appointed to assist the court clarified that the surrogacy agreement, executed in 2018, fell under the purview of the Indian Council of Medical Research (ICMR) guidelines of 2005, as the Surrogacy (Regulation) Act 2021 had not yet been enacted.
As per a rule of the guidelines, the donor and the surrogate mother have to relinquish all parental rights, the court noted, adding that in the present case, the twins would be the daughters of the petitioner and her husband.
"Under the guidelines, 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," the court said.
Justice Jadhav further reasoned that assuming, for the sake of argument, that if the younger sister would not have met with the life-threatening accident in April 2019 and would not have lost her husband and daughter, then there would have been "no reason for her to claim that she is the biological mother of the twin daughters of her sister and brother-in-law."
The bench concluded that the couple are "admittedly the intending couple, they are intending father and intending mother as defined under the Guidelines and the Surrogacy Act... they qualify to be the biological father and the biological mother once the twin daughters are born."
Justice Jadhav emphasised that the limited role of the wife's sister is that of an "oocyte donor, rather a voluntary donor and at the highest, she may qualify to be a genetic mother and nothing more, but by such qualification she would have no intending legal right whatsoever to claim to be the biological mother of the twin daughters as the law clearly does not recognise so."
Terming the lower court's denial of visitation rights to the wife as lacking proper application of mind, the High Court quashed the order. It directed the husband to provide the wife with physical access and visitation rights to the twins for three hours every weekend.
