Sperm or egg donor has no legal right on child, can't claim to be biological parent: Bombay High Court

Mumbai: A sperm or egg donor has no legal right on the child and cannot claim to be its biological parent, the Bombay High Court held on Tuesday while allowing a 42-year-old woman visitation rights to her five-year-old twin daughters.

The woman, in her plea, said her daughters, born via surrogacy, were living with her husband and younger sister, who was the egg donor.

The petitioner's husband had claimed since his sister-in-law was the egg donor, she had a legitimate right to be called a biological parent of the twins and that his wife had no right over them.

A single bench of Justice Milind Jadhav, however, refused to accept this contention, citing that though the petitioner's younger sister was the egg donor, she has no legitimate right to claim that she is a biological parent of the twins.

The court said the role of the younger sister is that of an egg donor, rather, a voluntary donor, and at the most, she may qualify to be a genetic mother and nothing more.

An advocate appointed to assist the court in the matter informed it that since the estranged couple's surrogacy agreement took place in 2018 when the Surrogacy (Regulation) Act 2021 had not come into force, the guidelines issued by the Indian Council of Medical Research (ICMR) in 2005 would regulate the agreement.

As per a rule of the guidelines, the donor and the surrogate mother have to relinquish all parental rights, the court noted, adding that in the present case, the twins would be the daughters of the petitioner and her husband.

"Under the guideline, it is clearly stated that the sperm/oocyte (egg) donor shall not have parental rights or duties in relation to the child and in that view of the matter, 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 high court said.

As per the plea, the couple could not conceive naturally, and the petitioner's sister volunteered to donate her eggs. In December 2018, the babies were conceived by a surrogate woman and the twin girls were born in August 2019.

In April 2019, the sister and her family met with a road accident, and her husband and daughter were killed.

The petitioner lived with her husband and twin daughters from August 2019 to March 2021. Following a marital discord in March 2021, the husband moved into another flat with the children without informing his wife.

The man claimed that his wife's sister (the egg donor) had been depressed after the road accident and started living with him to take care of the twins.

The petitioner filed a police complaint and an application before a local court, seeking interim visitation rights to her daughters. The local court rejected her application in September 2023, following which she approached the high court.

The wife said her sister had only donated her eggs and was not the surrogate mother, and hence, she had no legal right or role in the lives of the twins.

The high court, in its order, noted that the surrogacy agreement of 2018 between the intending parents, the surrogate mother and the doctor is signed by the petitioner, her husband and the doctor.

"It is seen that the petitioner (wife) and Respondent No. 1 (husband) are recognised as the intending parents. At least to a naked eye, there is no ambiguity whatsoever while observing and even concluding that it is the petitioner along with Respondent No. 1 who signed the surrogacy agreement as intending parents," it said.

Justice Jadhav held that the lower court order denying visitation rights to the wife was passed without proper application of mind and is unsustainable and quashed it.

The court directed the husband to give physical access and visitation rights of the twins to the petitioner for three hours every weekend.