The Division Bench of the Gujarat High Court comprising of Justice Vipul Pancholi and Justice Sandeep N Bhatt held that the Surrogacy Regulation Act, 2021 does not envisage any provision that would require the custody of a new-born infant to be retained by the surrogate mother for the purpose of breastfeeding.

Ms. Poonam M Maheta appeared for the Petitioners. APP Hardik Soni and Ms. Kitty Mehta appeared for the Respondent side.

In this case, the Petitioners entered into an agreement with a woman who had consented to be the surrogate for their child. As per the agreement, the custody of the child would be handed over to the Petitioners immediately after the birth.

The Petitioners informed the medical staff and police officers that there was a surrogacy agreement and the surrogate mother was required to hand over the custody of the child to them. Thereafter, the custody was given to the Petitioners.

However, the medical officer and staff of the hospital asked the Petitioners to bring back the child as the Superintendent of Police was insisting on the custody of the child, even after the surrogate mother confirmed the contents of the surrogacy agreement and her consent.

The Petitioners were refused the custody of the child on the ground that there was no order passed by the Court regarding the same.

The High Court relied on relevant sections of the Act and concluded that "Keeping in view the aforesaid clauses provided in the agreement entered into between the parties and the provisions of Act of 2021, it is clear that after giving birth to the child, the respondent no.5 is required to hand over the custody of the newly born child to the present petitioners who are intended parents and child born out of the surrogacy procedure shall be deemed to be the biological child of the intended couple and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force."

Further, the Court relied on the decisions rendered in the case of Navjot Singh Sidhu vs State of Punjab and Another, to hold that the Courts have to interpret the law as it stands and not on considerations that may be perceived to be morally more correct or ethical.

Allowing the Petition, the Bench opined that "In absence of any provision contained in the Act of 2021 providing that for the purpose of breast feeding, the custody of the child is to be retained by the surrogate mother for a particular period, this Court is of the view that the custody of the corpus i.e. newly born child is required to be handed over to the present petitioners." and instructed that the Petitioners must be given the custody of the child immediately.

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