Paridhi Arya
Published on June 28, 2022 at 19:06 IST
The Division Bench of Justices Vipul M Pancholi and Sandeep N. Bhatt observed that there is no provision under Surrogacy Regulation Act, 2021 which provides that for particular period of time custody of a new born need to be with surrogate mother for breastfeeding.
The Court pointed out that law need to be interpreted as it is and not on grounds of perceived morality and so intended parents can take the custody of child without the order of the Court under Surrogacy agreement and Surrogacy Regulation Act, 2021.
The Petitioner in the case is a married couple who went or surrogacy to be the parents and for that they found a surrogate and signed a contract with her.
Few days prior to the delivery surrogate mother were arrested by the police for some offence then she delivered the baby in the civil hospital.
The Petitioner informed the Police and medical staff about the situation and asked them to give the custody of new born in the presence of medical staff and same was done.
After some days medical staff from civil hospital asked the Petitioner to bring back the child as Superintendent of Police of Sabarmati Jail wants the custody.
The surrogate mother confirmed the agreement between parties and agreed to give the child’s custody to the intended parents but police said that there is no Court order of the same.
The Assistant Public Prosecutor submitted that Surrogacy Regulation Act, 2021 do not provide the custody of newborn to surrogate for breastfeeding however there are guidelines about importance of breastfeeding for first six months provided by the Government.
The Court relied on Section 8 of Surrogacy Regulation Act, 2021 including Clause 1(J), Clause 1(O), Clause 6(B) and section 2(zd). The agreement is also considered.
The Court referred the case of Navjot Singh Sidhu vs. State of Punjab and Another (2007) 2 SCC 574. In this case Supreme Court observed that for interpretation law should be considered as it is and not on grounds of morality or ethics.
The Court held that new born will be handed over to the intended parents as the law do not provide for retention of the custody with surrogate for breastfeeding.