Gujarat HC provides kid’s custody to organic dad and mom as surrogate heads to jail | Ahmedabad Information
AHMEDABAD: The Gujarat high court on Monday directed that the custody of a six-day-old girl be given to her biological parents after the surrogate mother, who is facing a criminal offense and has been under judicial custody, was to head back to jail .
The bench of Justice VM Pancholi and Justice SN Bhatt considered the provisions of the surrogacy agreement between the intending parents and the surrogate inked on December 21, 2021 and the law and observed that there is no time limit mentioned for which the child is to be retained by the surrogate for breastfeeding. Therefore, the custody should be given to the biological parents, the court said.
In this case, a couple from Ajmer opted to go for surrogacy after they were not blessed with a child after their long married life. They signed a contract with a 31-year-old divorcee woman from Lakhvad village in Mehsana district, who would be the surrogate mother. In February, she was accused of being a member of a gang of child-lifters which was booked for allegedly abducting a four-month old girl and selling her in Rs 2 lakh to a co-accused in the case. The surrogate mother in this case was arrested for charges under sections 363, 370, 370 (a), 120 B, 114 of IPC and Section 81, 84, 87 of The Juvenile Justice Act. On April 6, a city sessions court denied bail to her and she has been in Sabarmati jail since.
The surrogate was brought to the Civil Hospital, Ahmedabad for delivery and she delivered a girl child on June 21. The biological parents went to take the child and the medical authorities handed the custody of the child to the parents. However, the police objected and insisted that the couple cannot take the child without a court order because the surrogate was in judicial custody.
The biological parents rushed to the high court pointing out the reason behind the hurry because if the custody of the child is not handed over immediately, she would also be sent to jail along with the surrogate. Whereas the surrogacy agreement has made it clear that the child’s custody would be handed over immediately after the birth. The surrogate filed an affidavit in the court and said that she was willing to give custody.
The court inquired with the government about the minimum period for retaining custody of the child with surrogate for the purpose of breastfeeding, but no such provision is present in the law. The petitioners’ advocate Poonam Mehta also submitted that the provision for obtaining a magisterial court’s order to initiate surrogacy procedure is not present because the agreement had taken place four days before the new surrogacy law came into effect.