Egg Donor Can't Claim To Be Biological Parent: Bombay High Court (Photo @Pixabay)
The Bombay High Court on Tuesday ruled that an egg donor cannot claim to be the biological mother of the children born via surrogacy. Surrogacy is a system in which a woman agrees to carry and give birth to a child on behalf of another person or couple. While hearing a petition of a 2-year-old woman, the court granted her visitation rights to her five-year-old twin daughters born through surrogacy. The court also noted that a sperm or egg donor has no legal right to the child and cannot claim to be its biological parents.
The petition by the woman noted that her daughters were living with her estranged husband and youngest sister, who was the egg donor. She was challenging an earlier rejection of her application demanding visitation rights to the daughters. A Thane court order had refused the petitioner woman’s access to her twin daughters stating that she was not their biological mother.
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The husband had claimed that since his sister-in-law was the egg donor, she had a legitimate right to be called a biological parent of the twins, claiming that his wife had no right over them.
However, the court rejected the contention noting that although the husband’s sister was the egg donor, she has no legal right to the child nor claims to be the biological parent. “The limited role of the younger sister of the petitioner was that of an oocyte donor, rather a voluntary donor and at the highest, she may qualify to be a genetic mother and nothing more, but by such qualification she would have no intending legal right whatsoever to claim to be the biological mother of the twin daughters as the law clearly does not recognise so,” the court observed.
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The couple undertook a surrogacy agreement in 2018 under the guidelines of the Indian Council of Medical Research (ICMR) in 2005 that would regulate the agreement. The court highlighted that under the guidelines, it is clearly stated that the sperm/oocyte donor shall not have any parental right or duties in relation to the child and in that view of the matter, adding that the younger sister of the petitioner can have no right whatsoever to intervene and claim to be the biological mother of the twin daughters.
The couple had married in 2012 and as they were unable to conceive children, they resorted to altruistic surrogacy in 2018. The woman’s younger sister is already married and has a daughter who agreed to be the egg donor. In an accident in 2019, the egg donor met with an accident in which she lost her husband and daughter. Notably, the surrogacy was successful and the twins were born to the older sister in August 2019.
After losing her own family, the younger sister stayed with her older sister and husband along with the twins. However, in 2021, because of a marital dispute, the husband of the older sister went to his hometown, Ranchi while taking the twins with him. The younger sister also accompanied him and started looking after the children.
In March 2021, the woman filed a complaint demanding the custody of the twin daughters. She also filed an interim application for visitation rights to her daughters.
