The court said while there was no specific law by which the parents could seek a declaration regarding the surrogacy process in India, there are guidelines from the Indian Council of Medical Research and National Academy of Medical Sciences (NAMS).
“According to the national guidelines for accreditation or supervision of ART clinics, the surrogate mother is not considered to be the legal mother. Thus, the plaintiffs are biological and genetic parents of a baby boy and they are entitled for the custody of child as well as for removing a child from India to Australia,” the court said.
The couple, both in their 30s, told the court that in March 2019, they had entered into a surrogacy agreement with the woman. They said it was categorically agreed that the couple was to be the child’s legal parents and the surrogate will not raise any objection. It also said that she had agreed to conceive, carry and give birth to the child out of her own free will.
The couple said they gave full financial support to the surrogate during pregnancy and complied with all conditions stipulated in the agreement. The surrogate gave birth to a baby boy in October 2019.
The couple said they were required to prepare legal documents so that they could keep him with them in Australia but the woman did not cooperate. Hence, they were constrained to file the plea before the court in May this year.