The court established that the best interest of the child is paramount in guardianship matters, allowing the biological father to be declared the sole guardian despite legal ambiguities surrounding surrogacy.

JUDGMENT

Mr. Anupinder Singh Grewal, J.

The petitioners are seeking a writ in the nature of habeas corpus permitting the petitioner No.2 to take the petitioner No. 1 to Australia as he is de facto and de jure guardian and respondents No.4 & 5 do not have any legal right upon him. He has sought a further direction to respondents No. 1 & 2 for clarifying the specific provisions in the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as 'ART Act, 2021'). A writ in the nature of certiorari has also been sought for modification of section 7 of the Guardians And Wards Act, 1890. He had thereafter preferred an application bearing CRM-W-1217 of 2023 confining the prayer in this petition to the declaration that petitioner No.2 is the sole lawful guardian and has exclusive legal rights on petitioner No. 1.

1. Submissions

2. Learned counsel for the petitioners had submitted that the petitioner No.2 is the single biological parent and petitioner No. 1 was bom out of surrogacy after an agreement had been entered between petitioner No. 1 and the surrogate mother (respondent No.4) on 20.04.2019 (Annexure P-4). The petitioner No.2 is the permanent resident of Australia and is currently residing there and he intends to take petitioner No. 1 with him to Australia. Petitioner No. 1 has a valid Indian passport but the Australian Embassy is not granting him VISA and vide letter dated 11.06.2022 (Annexure P-10), it has put a condition that as the child was bom by way of surrogacy arrangement in India with only one commissioning parent, the laws in India are unclear and therefore, a declaration be obtained from a Court which confirms the petitioner No.2 (commissioning parent) with regard to full legal custody of the child, the right to remove from India and the legal right to determine where the child shall live. It should also declare that no other parties involved in the surrogacy arrangement, including the person who donated the egg, have any legal right on petitioner No. 1.

3. Learned counsel for respondents No.4 & 5 had submitted that they have no objection to the declaration sought by petitioner No.2. They have also furnished their respective affidavits-cum-declaration dated 21.06.2022 at Annexures P-8 & P-9 supporting the case of the petitioner No.2 and further declaring that they will never claim and have no intention to claim any custodial or parental rights of petitioner No. 1 at any time in future.

4. Ms. Tanu Bedi, learned Amicus Curiae, had submitted that the Court should consider the best interest of the child which would be of paramount importance and the relief can be moulded disregarding the technicalities of law. She had also referred to the provisions of the Indian Law with regard to surrogacy and submitted that although a legal framework was put in place in the year 2021 in the form of Surrogacy (Regulation) Act, but prior thereto, the Courts have accepted the arrangement of surrogacy for intending parents and protected the interest of the child bom thereafter. There is no impediment before this Court to issue the declaration as sought by petitioner No.2 which would be in the best interest of the child as petitioner No.2 is the sole claimant to the legal guardianship of the child.

II. Factual Matrix

5. The petitioner No.2 is a single parent and the biological father of the child (petitioner No. 1) as per DNA report (Annexure P-6). The identity of the oocyte woman is confidential. Petitioner No.2 had entered into surrogacy agreement with respondent No.4 who is the surrogate mother, on 20.04.2019 (Annexure P-4). The relevant extract of the agreement (Annexure P-4) is set out hereunder:-

"9. The Commissioning parent shall at all times be the parent of the child to be bom out of the surrogacy arrangement of this agreement and the surrogate mother shall have no right or claim over the child at any time whatsoever.

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12. It is agreed by all the parties to this agree