Bombay HC upholds the rights of a legal mother over egg-donor

MUMBAI: An 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 striking down a Thane court order which had refused a woman access to her 5-year-old twin daughters as she was not the ‘biological mother’.
The parents of the twins were married in November 2012 in Ranchi. As they were unable to conceive for a long period, in December 2018, they were advised to resort to “altruistic surrogacy”. The woman’s younger sister, who was married and had a daughter of her own, agreed to be the egg donor.
After the ovum was extracted from the younger sister, in April 2019, she met with an accident, which killed her husband and daughter, and left her disabled. Meanwhile, the surrogacy was successful and the twins were born in August 2019.
In March 2021, due to marital disputes, the father suddenly went to his native place, Ranchi and took the twins with him, without informing his wife. The younger sister also moved in to his Ranchi home and started taking care of the twins.
On March 25, 2021, the mother filed a police complaint and approached the district court under the Guardians and Wards Act, 1890 for custody of the twin daughters. During the proceedings before the district court, the mother filed an interim application for visitation rights to her daughters. The district court rejected her application and denied the mother’s visitation rights, holding that she was not the biological mother of the twin daughters.
This prompted the mother to approach the high court where the counsel appearing on her behalf contended that “the daughters were now 5 years old and were addressing the younger sister of Petitioner…as maa…and most importantly they are unable to recognize the petitioner, who is in fact their real mother.”
The plea was heard by the court on August 1, and the hearing was concluded the next day. “Every passing day in this case is severely detrimental, traumatic and prejudicial to the right of the (mother) whereas every passing day as the daughters grow old is beneficial to (the father),” a single judge bench of justice Milind Jadhav observed.
“It has been a shocking revelation for me while hearing this petition,” the court remarked setting aside the order of the district court. The high court held that “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 has therefore directed the father to give physical access and visitation rights to the mother every weekend for three hours for two months initially, and access to speak to the daughters on phone calls twice every week. The court has also allowed the younger sister to be present during the physical access but prohibited her from interfering with the access.
“The order has been welcomed by the mother; she even went as far as calling it the God’s order. The area of surrogacy law and issues arising out of it are still nascent. This is a very important ruling,” advocate Ganesh Gole said, regarding the judgement. The advocate for the father could not be contacted for a response.