The Bombay High Court ruled on Tuesday that a sperm or egg donor has no legal rights over a child and cannot claim to be its biological parent. The Court granted a 42-year-old woman visitation rights to her five-year-old twin daughters.
The woman had petitioned the Court, stating that her daughters, born via surrogacy, were currently living with her husband and her younger sister, who was the egg donor. The petitioner’s husband had argued that since his sister-in-law was the egg donor, she had a legitimate claim to being recognized as a biological parent of the twins, and that his wife had no rights over them.
Justice Milind Jadhav, however, rejected the contention that the petitioner’s younger sister, who was the egg donor, had any legitimate claim as a biological parent of the twins. The Court emphasized that the role of the younger sister was that of a voluntary egg donor and, at most, she could be considered a genetic mother, but nothing more.
An advocate appointed to assist the Court informed that the surrogacy agreement in question, which was made in 2018 before the Surrogacy (Regulation) Act 2021 came into effect, was regulated by the Indian Council of Medical Research (ICMR) guidelines of 2005. According to these guidelines, both the donor and the surrogate mother must relinquish all parental rights. The Court noted that in this case, the twins would be considered the daughters of the petitioner and her husband.
The High Court highlighted that the guidelines clearly state that the sperm or egg donor shall not have parental rights or duties concerning the child. Therefore, the petitioner’s younger sister had no right to claim to be the biological mother of the twin daughters.
The petition indicated that the couple was unable to conceive naturally, leading the petitioner’s sister to volunteer as an egg donor. In December 2018, a surrogate woman conceived the babies, and the twin girls were born in August 2019. In April 2019, the petitioner’s sister and her family were involved in a road accident, resulting in the death of her husband and daughter.
The petitioner lived with her husband and twin daughters from August 2019 until March 2021, when marital discord led the husband to move into another flat with the children without informing his wife. The husband claimed that his wife’s sister, who had been depressed after the accident, started living with him to care for the twins.
The petitioner filed a police complaint and an application for interim visitation rights to her daughters, which was rejected by a local court in September 2023. She subsequently approached the High Court.
It further argued that her sister, who only donated eggs and was not the surrogate mother, had no legal rights or role in the lives of the twins. The High Court observed that the 2018 surrogacy agreement was signed by the petitioner, her husband, and the doctor, with the petitioner and her husband recognized as the intending parents.
The single judge found that the lower court’s decision to deny visitation rights to the wife was unsustainable due to a lack of proper consideration and quashed it. The Court directed the husband to grant the petitioner physical access and visitation rights to the twins for three hours every weekend.
