As the biological parents demanded the immediate handing over of custody of an infant born through surrogacy to save him from going to jail with the surrogate mother, the High Court of Gujarat on Friday made it clear that it is not against granting custody to them, but its only concern is about how long the child should stay with the surrogate mother for feeding.
The bench of Justices V M Pancholi and R M Sareen also said that nobody can stop the biological parents of the child from meeting her so long as the surrogate mother is admitted to Civil Hospital, where she was brought from Sabarmati central jail for the delivery of child.
The bench said, “There is no scope of keeping the parents from meeting the child. We don’t have any issue in giving custody, but the only question is when should custody be given?”
The parents’ counsels submitted that according to the new law, an order from a magisterial court is a prerequisite for surrogacy, in which it mentions that custody of the child will be immediately handed over to the parents. The court asked the lawyers to place a copy of the court order. For this, the hearing was adjourned till Monday.
In this case, since the surrogate mother was booked in a case of child abduction & sale in Feb & lodged in jail, the biological parents feared that after the delivery, the child would also be sent to prison with the surrogate. The police denied them custody of the child & insisted on a Court order.
Upon the High Court’s notice, the surrogate mother filed an affidavit & said that she is willing to hand over the three-day-old child to the biological parents. The state government, did not oppose the custody claim, but flagged concerns about the timing & cited guidelines & a Apex Court order in a case of surrogacy saying that the child can be separated from the surrogate mother after 30 days.
During the hearing, the parents’ lawyers submitted that the law is silent on when custody should be given to the biological parents in a case of surrogacy, & therefore the agreement has made it clear that the surrogate would hand over custody of the child immediately after childbirth. They asked why the parents should wait for their child to go to jail even for a moment, when they are legally entitled to custody.
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