HC on biological parents: Sperm or egg donor has no parental right on child as per guidelines

The estranged husband, however, had claimed that since his sister-in-law (petitioner woman’s younger sister) was an egg donor, she had a legitimate right to be called as a biological parent of the twins and the petitioner, who is his wife, had no right over them.

The bench ‘outrightly rejected’ the husband’s contention in view of the Guidelines (governing surrogacy birth) and the Surrogacy Act.

“Though admittedly the younger sister of petitioner is the oocyte donor in the present case, she has no legitimate right to claim that she is the biological parent / mother of the twin daughter…her limited role is that of an oocyte donor, rather a voluntary donor,” the bench noted.

“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,” Justice Jadhav added.

Advocate Devyani Kulkarni, appointed as amicus curiae to assist the court in the matter had submitted that as the couple undertook surrogacy agreement in 2018, which was regulating under the guidelines of Indian Council of Medical Research (ICMR) in 2005 would regulate the agreement, as the Surrogacy (Regulation) Act 2021 was not in force at that time.

The bench observed, “Under the guidelines, it is clearly stated that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and in that view of the matter, the younger sister of petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters.”

Advocate Ganesh Gole for the petitioner had submitted that her younger sister volunteered to donate her eggs in January 2019 as the couple could not conceive naturally. The twin girls were born in August 2019. Meanwhile, in April 2019, the petitioner’s sister and her family met with a road accident in which she lost her husband and the daughter. The petitioner’s younger sister, who is the egg donor, survived.

While the petitioner stayed with her husband and the twin daughters from August 2019 till March 2021, due to marital dispute, the husband moved into another flat without informing his wife.

The respondent husband claimed that his sister-in-law (egg donor) had been depressed after the road accident and started residing with him and took care of the twin daughters and continued to do so.

The petitioner lodged a police complaint along with an interim application before the local court seeking visitation rights to the twins, which got rejected in September, last year, prompting her to approach HC.

“It is seen that the petitioner (wife) and respondent husband are recognised as the intending parents. There is no ambiguity whatsoever while observing that it is the petitioner along with respondent husband who signed the surrogacy agreement as intending parents,” the bench noted and set aside and quashed ‘unsustainable’ local court order.