ORDER :

Vipul M. Pancholi, J.

1. The present petition is filed under Article 226 of the Constitution of India by the petitioners praying that the writ of Habeas Corpus be issued directing the respondent nos.2 to 5 to hand over the custody of the corpus-newly born baby girl to the present petitioners.

2. Heard learned advocate Ms.Poonam Maheta for the petitioners, learned APP Mr.Hardik Soni for respondent nos.1 to 4 and learned advocate Ms.Kitty Mehta for respondent no.5. Learned advocate Ms.Kitty Mehta is permitted to file vakalatnama in the Registry.

3. Learned advocate for the petitioners submitted that the petitioners are married couple and residing at Rajasthan. Since even after a long married life, they were not fortunate enough to enjoy parenthood, they decided to go for surrogacy. Therefore, the petitioners entered into the agreement with the respondent no.5 who is surrogate mother on 27.12.2021 and it was decided that immediately after the birth of the child, the custody of the child would be handed over to the petitioners i.e. the intended parents. It is further submitted that after following the due procedure and as per the agreement entered into between the parties, the respondent no.5 has delivered a girl child. At this stage, learned advocate for the petitioners submitted that before the due date of the delivery, the respondent no.5 was arrested by the police in connection with the FIR being C.R.No.11191018220235 of 2022 registered with Gomtipur police station Ahmedabad city on 18.2.2022 and she was taken to the judicial custody. Thereafter, the petitioners learnt that on 20.6.2022, there was a natural labour pain to the respondent no.5 as the due date was coming nearer and therefore she was taken to the Civil Hospital Ahmedabad considering her medical condition and thereafter on 21.6.2022, the respondent no.5 had delivered a baby girl at the civil hospital.

4. It is further submitted that the petitioners came to know that respondent no.5 had immediately conveyed to the medical staff and the police officers that as per the surrogacy agreement entered into between the petitioners and respondent no.5, the respondent no.5 was under obligation to hand over the custody of the newly born child to the intended parents i.e. the present petitioners. Accordingly, the concerned officers of the respondent no.3-hospital have contacted the petitioners through Wings hospital and on 21.6.2022, the petitioners along with the consulting and administrative staff of Wings hospital have rushed to the civil hospital for taking custody of the newly born baby girl. Thereafter, the custody was given to the petitioners in presence of the medical staff and the concerned doctor.

5. At this stage, learned advocate submits that now the grievance of the petitioners is that the concerned medical officer and staff of the civil hospital conveyed the petitioners to bring back the newly born baby girl to the civil hospital as the respondent no.2 i.e. Superintendent of Police, Sabarmati jail is insisting for the custody of the child. It was also orally informed that unless and until there is an order of any court of law, the custody of the newly born child would not be given to the petitioners.

6. Learned advocate for the petitioners thereafter submitted that the respondent no.5-biological mother i.e. surrogate mother has also given her consent to hand over the custody of the child to the present petitioners. Inspite of that, the custody of the child is not given by the respondent nos.2 and 4 to the petitioners. It is, therefore, urged that appropriate direction be issued to the concerned respondent authorities for handing over the custody of the corpus i.e. the newly born child to the petitioners who are intended parents as per the agreement.

7. On the other hand, learned advocate Ms.Mehta appearing for respondent no.5 has placed on record the affidavit of the respondent no.5 wherein the respondent no.5 has categorically stated that by virtue of surrogacy a