A bench of Justices VM Pancholi and SN Bhatt, on December 21, 2021, considered the provisions of the surrogacy agreement between the intending parents and the surrogate and the law and observed that there is no time limit for which the child has to be placed. By surrogate for breastfeeding. Therefore, custody should be given to the biological parents, the court said.
In this case, a couple from Ajmer opted for surrogacy after their long married life was not blessed with a child. He signed a contract with a 31-year-old divorced woman from Lakhwad village in Mehsana district, who would be a surrogate mother. In February, he was charged with being a member of a gang of child lifters for allegedly abducting a four-month-old girl and selling it to a co-accused in the case for Rs 2 lakh. was. In this case, the surrogate mother was arrested under sections 363, 370, 370 (A), 120B, 114 of the IPC and sections 81, 84, 87 of the Juvenile Justice Act. On 6 April, a sessions court in the city refused to grant him bail and he has been in Sabarmati jail since then.
The surrogate was brought to the Civil Hospital in Ahmedabad for delivery and she gave birth to a baby girl on June 21. The biological parents went to pick up the child and the medical authorities handed over custody of the child to the parents. However, the police objected and insisted that the couple could not take the child without a court order as the surrogate was in judicial custody.
The biological parents moved the high court stating the reason behind the haste as if the custody of the child is not handed over immediately, he will be sent to jail along with the surrogate. Whereas the surrogacy agreement has made it clear that the custody of the child will be handed over immediately after birth. The surrogate filed an affidavit in the court and said that she was ready to give custody.
The court inquired from the government about the minimum period for maintaining custody of a child with a surrogate for the purpose of breastfeeding, but no such provision exists in the law. Poonam Mehta, the counsel for the petitioners, also submitted that the provision for obtaining a magisterial court order to initiate the surrogacy process does not exist as the settlement was entered into four days before the new surrogacy law came into force.