LI Network
Published on: November 28, 2023 at 00:59 IST
In a significant ruling, the Punjab & Haryana High Court recently granted a habeas corpus plea, declaring the single biological father as the sole guardian of his surrogate child, subsequently permitting the child’s removal from India.
The case unfolded when the embassy declined the child’s visa, citing uncertainties in surrogacy laws for single parents until 2021.
Petitioner no 2, the biological father, approached Justice Anupinder Singh Grewal’s single bench, seeking sole legal guardianship of his 4-year-old surrogate child, petitioner no 1. Residing in Australia, he had applied for a visa, leading to rejection based on unclear surrogacy laws. The embassy required a court declaration to resolve this ambiguity.
Justice Grewal, prioritizing the child’s welfare, asserted that legal technicalities should not overshadow the child’s best interests. Citing the evolving nature of law, the court referred to Indian precedents recognizing surrogacy before the Surrogacy (Regulation) Act, 2021. Notably, the court cited cases affirming a single male’s right to surrogacy.
Petitioner no 1 was born in 2019 through a surrogacy agreement, and despite a valid Indian passport, the Australian Embassy withheld the child’s visa, citing unclear legalities.
The embassy demanded a court declaration, confirming sole legal custody, the right to relocate the child, and the determination of the child’s residence.
Highlighting no objections from the surrogate mother or her husband regarding custody, the court emphasized its parens patriae jurisdiction to safeguard the child’s welfare. Referring to the International Bill on Human Rights, the court recognized procreation and family as fundamental rights.
Justice Grewal noted that the Surrogacy (Regulation) Act, 2021, wouldn’t affect this case, as it applies prospectively from January 2022. The court ruled no legal impediment to the declaration sought by the father for the child’s best interest.
Considering the child’s current living situation with the paternal grandmother, the court asserted the father’s ability to provide education, material comforts, and moral support. Emphasizing the child’s pivotal role in shaping the nation’s future, the court granted the requested relief.