MEMORIAL FOR RESPONDENTS

Page|1

Before
The Hon’able High Court of Delhi

UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE

Honey ---------------------------------------------------------------------------------------Appealant
Vs
Ashok Lal-----------------------------------------------------------------------------------Respondent

Memorial for Respondent

TABLEOF CONTENT
 MEMORIAL FOR RESPONDENTS
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1. INDEX OF AUTHORITIES

a) LIST OF CASES page 3

b) STATUTARY COMPILATIONS page 4

c) WEB RESOURCES page 4

2. ABBREVIATIONS page 5

3. STATEMENT OF JURISDICTION page 6

4. STATEMENT OF FACTS page 7

5. STATEMENT OF ISSUES page 8

6. SUMMARY OF ARGUMENTS page 9

7. ARGUMENTS ADVANCED page 10- 24

8. PRAYER page 25
 INDEXOFAUTHORITIES

LIST OF CASES

1. Soma Chatterjee vs Chapala Chatterjee And Ors. II (1990) DMC 312

2. Bhopal Singh v. Chatter Singh AIR 2000 P&H 34

3. Indira Bai v. Nand Kishore (1990 (4) SCC 668)

4. Ghisalal v. Dhapubai CIVIL APPEAL NOS. 6375 - 6376 OF 2002.

5. Provash Chandra Dalui v. Biswanath Banerjee (AIR 1989 SC 1834)

6. Inder Singh vs Gurdial Singh 1967 AIR 119, 1962 SCR (1) 845

7. Ram Shankar Adopted Son Of Late Sri. vs The General Manager, N.C. Zone

ORIGINAL APPLICATION NO. 666/ 2010

8. Daniraiji Vrajlalji vs Vahuji Maharaj Chandraprabha AIR 1971 Guj 188

9. Deoki Nandan Ajudhia Parshad And ... vs Rikhi Ram And Ors AIR 1960 P H

542

10. Nayankumar Rajnikaben Trivedi Vs District Education Officer AIR 2004

Gujarat 53

11. Soma Chatterjee vs Chapala Chatterjee And Ors. Supra at 1

12. Basavarajappa v. Gurubasamma (2005) 12 SCC 290

13. Baby M 537 A.2d 1227

14. Jaycee B. v. Superior Court Court of Appeals of California, Fourth District,

Division Three decided on February 6, 1996

 STATUTORY COMPILATIONS

1. Hindu Adoptions and Maintenance Act, 1956

2. Constitution of India, 1950

3. The Special Marriage Act, 1954

4. Indian Contract Act, 1872

5. Hindu Marriage Act, 1956

6. Guardian and Wards Act, 1890.

WEB RESOURCES

1. www.scconline.com

2. www.indlaw.com

3. www.manupatra.com

4. www.courtnic.nic.in

5. Indiankanoon.org
 LISTOF ABBREVIATIONS

 AIR All India Report

 ILR Indian Law Reports
 MANU Manupatra
 SCR Supreme Court Reporter
 SC Supreme Court
 SCC Supreme Court Cases
 SCW Supreme Court Weekly
 DMC Delhi Municipal Corporation
 P&H Punjab and Haryana
 Guj Gujarat
 STATEMENTOF JURISDICTION

THE COUNSEL FOR THE RESPONDENT HUMBLY SUBMITS BEFORE THIS

HON’BLE COURT THAT THE APPELLANTS APPROACHED THE HON’BLE COURT
UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1973. THE
RESPONDENT RESPECTFULLY SUBMITS TO THIS JURISDICTION INVOKED BY
THE APPELLANTS.

Section 96. Appeal from original decree:

(1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction the Court authorized to hear appeals from
the decisions of such Court.
 STATEMENTOF FACTS
1. Mr. Swaroop, a Hindu and Ms. Honey, a Christian married in April, 2003 under Special
Marriage Act, 1954. As they did not have any child till 2006, Swaroop proposed to adopt a
girl child of one year old, in January 2007, who was none other than Swaroop’s own sister’s
daughter, who was already having two daughters and Honey reluctantly agreed for it. The girl
was given in adoption by her natural father to Swaroop. The child was named as Kranti.

2. But post-adoption, Honey was very much particular that they should have a child of their
own genes. So they planned to have a child through surrogacy and in consultation with Dr.
Morris in Delhi a surrogacy agreement was entered with Ms. Neeta and they got a surrogated
boy child, born on 1st September, 2008.

3. As Honey wanted to name the child as James and Swaroop wanted to name him as Rahul,
the naming ritual was postponed for some time. Unfortunately Mr. Swaroop was involved in
an accident and died on 15thOctober, 2008. Honey started calling the child as James and got
the name registered as James in the birth certificate.

4. When Swaroop’s father, Ashok Lal, expressed that Kranti was entitled to a share in the
property of Swaroop, Honey and her father replied that the said adoption was not valid as
Honey was a Christian who could not adopt under Christian law and hence Kranti would not
get any share in Swaroop’s property.

5. Swaroop’s father filed a suit on behalf of his grand-daughter, Kranti, for a share in
Swaroop’s property in the District Court and for a declaration that James is not entitled to any
share in his father’s property as he is neither the natural or adopted son of Swaroop.

6. The court through its order dated 1st April, 2009 held that there was a valid adoption and
the adopted child, Kranti, would be entitled to a share in Swaroop’s property as Swaroop was
entitled to adopt as per Hindu Adoptions and Maintenance Act, 1956 and his Christian wife’s
consent was irrelevant as per proviso to S.7 of the said Act.

7. The District Court refused to declare that James was not entitled to a share in Swaroop’s
property. Honey preferred an appeal before the High Court of Delhi challenging the validity
of adoption on the ground that since their marriage was performed under Special Marriage
Act, 1954, Swaroop had lost his right of adoption as a Hindu.

8. She also has requested the Court to declare that James has the same rights available to a
natural born child as he was conceived with Honey’s egg and Swaroop’s sperm.
 STATEMENTOF ISSUES

Issue no 1:

Whether the “Adoption” made, is valid under the Hindu Adoptions and Maintenance
Act, 1956?

Issue no 2:

Whether the child born through “Surrogacy Arrangement” will be considered a

“Natural Born-Child”?
 SUMMARYOF ARGUMENTS

1. WHETHER THE “ADOPTION” MADE, IS VALID UNDER THE HINDU

ADOPTIONS AND MAINTENANCE ACT, 1956?

WHAT IS MEANT BY ADOPTION

LEGAL ASPECT OF ADOPTION.

1. ALL THE REQUISITES OF A VALID ADOPTION MET

2. HONEY’S CLAIM AS MERELY A GUARDIAN AND NOT AN ADOPTIVE

MOTHER IS ALSO NOT MAINTAINABLE.

3. THE LAW SHOULD BE CHILD ORIENTED AND PROTECT THE RIGHTS

OF THE CHILD.

2. WHETHER THE CHILD BORN THROUGH “SURROGACY

ARRANGEMENT” WILL BE CONSIDERED A “NATURAL BORN-CHILD”?

SURROGACY- ITS DEFINITION

1. ARGUMENTS BASED ON INDIAN CONTRACT ACT, 1872

2. TRAFFIC IN HUMAN BEINGS

3. RELIGIOUS ARGUMENTS

4. ETHICAL ISSUES RELATED TO SURROGACY

CONCLUSION
 ARGUMENTS ADVANCED

1. Whether the “Adoption” made, is valid under the Hindu Adoptions and
Maintenance Act, 1956?

The counsel for the Respondent humbly submits that the adoption of Kranti is valid under
Hindu Adoptions and Maintenance Act, 1956 and thereby all the grounds of challenge relied
on by the Appellant are arbitrary, baseless and devoid of any merit.

The very fact that the District court vide its order dated 1st April 2009 held that there was a
valid adoption and the adopted child, Kranti would be entitled to a share in Swaroop’s
property as Swaroop was entitled to adopt as per Hindu Adoptions and Maintenance Act,
1956 makes the claims of Appellant not only fall short of the merit rather has been filed
frivolously to gamble with the claims of a child’s future.

Overview of the CONCEPT OF ADOPTION

What is meant by Adoption:

Adoption is the institutionalized practice through which an individual belonging by birth to

one kinship group acquires new kinship ties that are socially and legally defined as equivalent
to the congenital ties. These new ties supersede the old ones either wholly or in part.

Legal aspect of Adoption:

Adoption as a legal concept was available only among the members of the Hindu community
except where customs or the personal laws permitted such adoption for any section of the
society. Which also means Legally Speaking “Only Hindus were allowed to legally adopt the
children and the other communities could only act as legal guardians of the children.”

Adoption never as a Uniform Civil Code:

Article 44 of the Constitution of India declares that:

The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the
territory of India.
The religion-specific nature of adoption laws was a very retrograde step. It reinforced
practices that were unjust to children and hindered the formation of a Uniform Civil Code.
Now that there is no uniform law for adoption in India, the legislation related to adoption can
be seen as falling into two broad categories:

 Hindu Adoption and Maintenance Act of 1956

 Guardians and Wards Act of 1980

The two laws under which adoption in India functions are not child oriented, even though the
focus of all adoption work should really be the child.

From the legal point of view, “adoption is viewed as a transaction whereby the mutual rights
and responsibilities related to the child and belonging to the biological parents, are
permanently transferred to the adoptive parents.”

Now since the adoption involves a permanent termination of parental rights and links the
child permanently to another family, the laws related to adoption are very important.

The child is vulnerable and totally dependent on the adults who are making their life
decisions, and hence safeguarding their rights and interests is of prime importance.
1. All the requisites of a Valid Adoption met

➢ Section 6 of Hindu Adoptions and Maintenance Act, 1956 lays down the Requisites of
valid adoption, as under:

i. The person adopting has the capacity and also the right to take in adoption.

ii. The person giving in adoption has the capacity to do so

iii. The person adopted is capable of being taken in adoption, and

iv. The adoption is made in compliance with the other conditions as mentioned.

Therefore applying the aforesaid provisions to the factsheet:

Swaroop is a Hindu male, who has the capacity and also the right to take in adoption. He is
also of a sound mind, capable and thus he can adopt another Hindu in this capacity. The law
is well settled in this regard and thereby requires no clarification in the instant case.

➢ Further according to Section 7 of Hindu Adoptions and Maintenance Act, 1956 any
male Hindu who is of a sound mind and is not a minor has capacity to take a son or a
daughter in adoption. This is subjected to a condition that if he has a wife living, he shall
adopt with the consent of the wife unless the wife has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to
be of unsound mind.
Even the consent was given by the appellant. Now the appellant can’t refuse the fact that she
consented to the act of adoption. The law of Estoppel will come into picture. Appellant can’t
challenge the validity of the adoption.

➢ Law of Estoppel: The registered adoption document, which is made and signed by the
person giving and the person taking the child in adoption, is in compliance with the law
and is a valid adoption. Even if the facts are silent about the registered adoption
document, it can be presumed as all the other requisites are clearly looked upon.

Now Honey, after the death of her husband can’t say she never consented to the adoption. It
is clearly mentioned in the point no 2 of the fact sheet. She is now estopped from saying that
she didn’t consent for the adoption. Law of estoppel will apply in such a circumstance.

In Soma Chatterjee vs Chapala Chatterjee And Ors1. It was held that the subsequent conduct
of the wife denying giving consent would be immaterial if really she gave the consent.

In the instant case, Appellant did give her consent for the act of adoption. She can’t wash off
her hands from the responsibility of the adopted child mere by saying that consent was not
given.

It is settled canon of law that equity follows the law. Equity would tilt in favor of law and
not against violation thereof. To claim equity, the petitioner must explain previous conduct;
Bhopal Singh v. Chatter Singh2,
➢ In Indira Bai v. Nand Kishore3, it was observed as follows: "Estoppel is a rule of
equity flowing out of fairness striking on behavior deficient in good faith. It operates as a
check on spurious conduct by preventing the inducement from taking advantage and
assailing forfeiture already accomplished. It is invoked and applied to aid the law in
administration of justice. But for it great many injustice may have been perpetrated. Present
case is a glaring example of it. If a man either by words or by conduct has intimated that he
consents to an act Further according to Section 7 of Hindu Adoptions and Maintenance
Act, 1956 any male Hindu who is of a sound mind and is not a minor has capacity to
take a son or a daughter in adoption. This is subjected to a condition that if he has a wife
living, he shall adopt with the consent of the wife unless the wife has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.

1
II (1990) DMC 312
2
AIR 2000 P&H 34
3
(1990 (4) SCC 668)
 which has been done and that he will not offer any opposition to it, although it could not have
been lawfully done without his consent, and he thereby induces others to do that which they
otherwise might have abstained from, he cannot question legality of the act he had sanctioned
to the prejudice of those who have so given faith to his words or to the fair inference to be
drawn from his conduct. It cannot be doubted that there may be cases in which there is
deception by omission, silence may be treated as deception only where there is a duty to
speak;

In Ghisalal v. Dhapubai4, it was held that there are certain cases where the consent of the
wife is not relevant. once the deed of adoption is registered in accordance with law under
Section 16 of the Hindu Adoptions and Maintenance Act, 1956 a statutory presumption do
arise to the effect that the adoption has been made in compliance with the provisions of this
Act unless and until it is disproved and, therefore, when the defendants have proved the
registered adoption deed, examined the attesting witnesses, examined the natural father and
natural mother who gave the child in adoption the adoption stands proved. Though admittedly
the consent of the plaintiff, the adoptive mother is not taken, having regard to the facts of this
case and the strained relationship between the plaintiff and her husband, the consent of the
plaintiff was impossible and therefore not necessary. Therefore, under those circumstances, it
is permissible for a Hindu to adopt a child without the consent of his wife. Therefore, he
submits seen from any angle the finding recorded by the Court below regarding adoption is
illegal and requires to be set aside.

➢ In order to prove a valid adoption, there would be not only giving and taking but such
giving and taking would be with intention to transplant the child from the family of the
natural parents to that of the adopted parents (respondent), which very much happened in
our instant case that is transfer of Kranti to Swaroop’s house.
➢ Even if it is said that no ceremonies are performed, then also the act of adoption is valid.
➢ In Inder Singh vs Gurdial Singh5 It was held that “As adoption is not a religious
ceremony, no special formalities are considered necessary. The adopter usually calls
the neighbours and his relations together, and distributes gur, saying that he has
adopted (god lia) so and so. Sometimes a deed of adoption is executed. But a declaration of
adoption and general treatment as a son are looked upon as sufficient." It is well-
established principle that customary adoption requires absolutely no formalities. The
evidence required to establish the factum of adoption is merely evidence.
➢ The allegation so raised in this regard by the Appellant is that since Swaroop married
under the Special Marriage Act, 1954 he ceased to be a Hindu and thereby cannot adopt as a
Hindu. The particular allegation of the Appellant is frivolous and devoid of any merit as
nowhere does the Special Marriage Act, 1954 even hint about what the Appellant is trying to
seek from this court. The act does provide the consequences of Marriage under this act that a
Hindu male who marries under the Special Marriage Act, 1954 Chapter IV
4
CIVIL APPEAL NOS. 6375 - 6376 OF 2002.
5
1967 AIR 119, 1962 SCR (1) 845
Section 19 of The Special Marriage Act 1954: Effect of marriage on member of undivided
family- The marriage solemnized under this Act of any member of an undivided family who
professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance
from such family.

The counsel submits that Section 19 only talks about the severance of the status from the
Hindu Undivided Family and not the severance of the person from the religion that one has.

The allegation of the appellant could only be taken incase Swaroop would have specifically
surrendered his religion.

➢ Section 9 of Hindu Adoptions and Maintenance Act, 1956 provides that no person
except the father or mother or the guardian of the child shall have the capacity to give the
child in adoption can give it in adoption.

According to the point 2 of the factsheet Swaroop’s sister gave the child in adoption.
Therefore being a mother she was capable of giving in her child Kranti making the adoption
valid.
➢ By the virtue of Section 10 of Hindu Adoptions and Maintenance Act, 1956, no
person shall be capable of being taken in adoption unless the following conditions are
fulfilled, namely:

i. He or she is a Hindu

ii. He or she has not already been adopted;

iii. He or she has not been married, unless there is a custom or usage applicable to the
parties which permits persons who have completed the age of fifteen years being taken in
adoption

iv. He or she has not completed the age of fifteen, unless there is a custom or usage
applicable to the parties which permits persons who have completed the age of fifteen years
being taken in adoption

Hence the adoption of Kranti, who was taken from Swaroop’s sister was before and continues
to be a Hindu even after the adoption.
 ➢ Prior to The Hindu Adoptions and Maintenance Act, 1956 only the adoption of son
was recognized but after the commencement of this Act, daughter’s adoption is also legally
recognized

➢ The adoption must be real and not symbolic. The child must be actually given and
taken in adoption by the respective parties. However, no specific shastric or religious
ceremony is necessary for the purpose.
➢ Section 14 of the Hindu Adoptions and Maintenance Act, 1956 also provides that where a
Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
The adoption made by Swaroop is valid and Honey therefore shall be deemed to be the
adoptive mother of Kranti.

➢ Section 15 of the Hindu Adoptions and Maintenance Act, 1956 clearly puts forth
Adoption once made becomes irrevocable: That a valid adoption can’t be cancelled. No
adoption which has been validly made can be cancelled by the adoptive father or mother or
any other person, nor can the adopted child renounce his or her status as such and return to
the family of his or her birth.

Now even though Swaroop is dead, Honey cannot shun off her responsibility as the adoptive
mother of Kranti as well as natural guardian to Kranti, as in the event of death of the father,
the natural guardian to a child adopted by a Hindu male is his wife, irrespective of her

religion. The adoption of the child can’t be cancelled. Honey being the widow of Swaroop
can’t wash off her hands from the responsibility.

In Ram Shankar Adopted Son Of Late Sri. vs The General Manager, N.C. Zone6 it was held
that in view Section 15 of the Hindu Adoption Act,1956 after adoption deed was executed, it
has become irrevocable.

In Daniraiji Vrajlalji vs Vahuji Maharaj Chandraprabha7 it was held that “No adoption
which has been validly made can be cancelled by the adoptive father or mother or any other
person, nor can the adopted child renounce his or her status as such and return to the family
of his or her birth." Section 15 is absolute in its terms and specifically provides that no
adoption which has been validly made, can be cancelled by either of the adoptive parents or
by the person adopted

The instant case is covered under the Hindu Adoptions and Maintenance Act, 1956 inspite of
the wife of the Hindu male who is adopting is a Christian.

6
ORIGINAL APPLICATION NO. 666/ 2010
7
AIR 1971 Guj 188
➢ There are several scenarios possible with respect to the status of the adopting male at
the time of adoption :
1. Adopting male is an Indian Hindu widower or unmarried.
2. Adopting male is an Indian Hindu married to an Indian Hindu female.
3. Adopting male is an Indian Hindu married to an Indian non-Hindu female.
4. Adopting male is a married Indian Hindu but his wife has renounced the world.
5. Adopting male is an Indian Hindu divorcee.
6. Adopting male is a non-Indian married or unmarried Hindu.

Therefore, an adoption in the first five cases above shall be covered under the Hindu Adoption
and Maintenance Act, 1956.

Adoption in India is at present governed by personal laws and therefore only Hindus can
adopt under Hindu Adoption and Maintenance Act, 1956. This Act applies to any person who
is a Hindu by religion in any of its forms, including Buddhism, Jainism and Sikhism.
Swaroop being a Hindu can adopt.

Considering all the above facts and circumstances Swaroop’s marriage under the Special
Marriage Act, 1954 has the effect of severance of ties from Joint Hindu family and the
religion of the party remains intact. So, the adoption is valid and beyond any challenge.

Section 16 of the Hindu Adoption and Maintenance Act, 1956 WHICH lays down the rule of
presumption which requires that when there is a duly registered deed of adoption the court
shall presume that the adoption has been made in compliance of the provisions of the Act
unless and until it is disposed. This is no doubt a rebuttable presumption and the onus is upon
the person challenging such adoption to rebut it. But on behalf of the respondent, it is
urged that the respondent have rebutted the presumption laid down in Section 16 by adducing
sufficient evidence. It is also urged when in law there was no valid adoption as the alleged
adoption was not given by the father of the plaintiff and that wife of the adoptive father did
not give her consent to the adoption then the Section of 16 would not be attracted as it is not
an adoption in accordance with law.

2. Honey’s claim as merely a Guardian and not an adoptive mother is also not
maintainable.

Relation Between Ward & Guardian:

This relation is a very fiduciary relation (trust relationship) (u/s 20 of the Guardians and
Wards Act of 1980). A guardian must not make profit out of his office; no property would be
sold or purchased between them. Under section 24 of the aforesaid Act the duties of the
 guardian is to take care of his (ward) health, education, support and other such matter
according to the law to which the ward is subject, requires. Section 27 of the aforesaid Act
lays down the duties of a guardian for the property. The guardian is bound to deal with the
property carefully as a layman with ordinary prudence would deal with it. He may deal with
properties which are reasonable and proper for the realization, protection or benefit of the
property.

On adoption, adoptee gets transplanted in adopting family with the same rights as that of
natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after
severing all his ties with natural family; Basavarajappa v. Gurubasamma8.

3. The law should be child oriented and protect the rights of the child

Last but not the least the two acts relating to adoption in India are insufficient to deal with the
interest of the child adopted. The GWA 1890 confers only the status of a ward to the adopted
child and not the status of a biologically born child, hence there is no security for either the
adopted child or the adoptive parents. Though the law, literally speaking should protect the
child’s interest whatsoever. Afterall “Adoption is not about finding children for families; it's
about finding families for children.”

8
(2005) 12 SCC 290
 2. Whether the child born through “Surrogacy Arrangement” will be considered a
“Natural Born-Child”?

The Counsel humbly submits before this Hon’ble Court that the allegations made by the
Appellant are baseless, arbitrary and devoid of any merit.

It is hereby submitted that a child born out of a “Surrogacy arrangement” is not a legal child.
It is further contested that the child has never been granted any kind of status at all in the
Indian laws.

Surrogacy- Its definition

The Report of the Committee of Inquiry into Human Fertilization and Embryology or
the Warnock Report (1984) termed surrogacy as the practice whereby one woman carries a
child for another with the intention that the child should be handed over after birth.

Surrogacy

Surrogacy arrangements can generally be divided into two types: traditional surrogacy and
gestational surrogacy. The original type of surrogacy arrangement was created when the
ovum of the surrogate mother was artificially inseminated with the sperm of the intended
father. The resulting child was genetically related to the intended father and the surrogate
mother. Another form of traditional surrogacy occurs when the intended parents use the
sperm of an anonymous donor to fertilize the ovum of the surrogate mother. In this
arrangement, the surrogate mother has a genetic relationship to the child, but neither of the
intended parents does.
 ARGUMENTS:

Child born out of a surrogacy arrangement is not recognized in the eyes of law and its legal
position as a legal heir remains questionable.

1. ARGUMENTS BASED ON INDIAN CONTRACT ACT, 1872

➢ CONSIDERATION

The very concept that the Appellant indulged into a contract with Ms. Neeta is a proof in
itself that she engaged herself in the act of “Commercial Surrogacy”. Since the word
“Contract” is enough to prove that there was some “Consideration” involved as defined
under the Indian Contracts Act, 1872 which further makes the surrogacy a “Commercial
Surrogacy” which is not just legally invalid but also morally wrong.

LAW COMMISSION REPORT

To legalize surrogacy, The Law Commission of India has submitted the 228th Report on
“Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As
Rights and Obligations of Parties to a Surrogacy .” The following observations had been made
by the Law Commission:
➢ Surrogacy arrangement will continue to be governed by contract amongst parties, which
will contain all the terms requiring consent of surrogate mother to bear child, agreement
of her husband and other family members for the same, medical procedures of artificial
insemination, reimbursement of all reasonable expenses for carrying child to full term,
willingness to hand over the child born to the commissioning parent(s), etc. However,
such an arrangement should not be for commercial purposes.

➢ UNLAWFUL CONSIDERATION

Non-commercial surrogacy agreements, providing only for ‘compensation’ equivalent to

reasonable expenses incurred by the surrogate mother, pass the touchstone of public policy
considerations under Section 23 the Indian Contract Act, 1872.
Section 23 of the Indian Contract Act, 1872 “The consideration or object of an agreement is
lawful, unless- it is forbidden by law, or is of such a nature that, if permitted, it would defeat
the provisions of any law; or is fraudulent; or involves or implies injury to the person or
property of another or; the Court regards it as immoral, or opposed to public policy. In each
of these cases, the consideration or object of an agreement is said to be unlawful. Every
agreement of which the object or consideration is unlawful is void.”
 But they are regarded as “Void agreements”. Contract law governing surrogacy
arrangements do not mean that such contracts are enforceable. It might be declared void
because they are against public policy. As sufficient knowledge and consent are essential to
contract formation, without them it may be ruled void and unenforceable.

Though the New Jersey court observed in the case of Baby M9 case that the child’s custody
be granted to its commissioning parents However the court came to the conclusion that
surrogacy contract is antagonistic to public policy. These standards and safeguards are meant
to facilitate the use of this type of reproductive contract in accord with the public policy of
the State.
Thereby it should not be done. In absence of any law to deal with Surrogacy, these precedents
may be of some value to the court.

Advancing the legal dilemmas further the case of Jaycee B. v. Superior Court10 presented a
still complex situation where a child was born to a surrogate mother using sperm and eggs
from anonymous donors because the infertile couple was unable to create their own embryo
using the in vitro fertilization techniques. Thus the surrogate child had five people who could
lay claim to parenthood – a genetic mother, a commissioning mother, a surrogate mother, a
genetic father and a commissioning father. The commissioning couple got separated prior to
the birth the surrogate child and commissioning father rescinded his obligation under the
surrogacy contract in order to avoid maintenance costs to the child. Commissioning mother
sought both custody and support from her ex-husband. The court granted temporary custody
of the baby and order the commissioning father to pay for child support. The court battle
continued for three years wherein the surrogate child did not have a legal parent for this
period. The conclusions arrived at the judicial determination of surrogacy contract clearly
indicate that these contracts are against public policy.

2. TRAFFIC IN HUMAN BEINGS

Commercial surrogacy which converts surrogacy into a business activity seemingly falls
foul of Article 23 of the Constitution of India.
Article 23 reads as “Traffic in human beings and beggar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence punishable
in accordance with law.”
The word ‘traffic’ used in the aforesaid Article connotes an element of trade i.e. buying and
selling and commercial surrogacy being equivalent to baby selling certainly involves traffic
in children.
It was held in the case of State of Rajasthan v. Basant Nahata11

9
537 A.2d 1227
10
Court of Appeals of California, Fourth District, Division Three decided on February 6, 1996
11
(2005) 12 SCC 7710
 Article 23 prohibits trafficking in human beings while Section 23 makes agreements contrary
to public policy unenforceable embracing within its fold such contracts which are likely to
deprave, corrupt or injure the public morality.

3. RELIGIOUS ARGUMENTS

➢ Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that
entail the disassociation of husband and wife, by the intrusion of a person other than the
couple (donation of sperm or ovum, surrogate uterus), are gravely immoral."
➢ Techniques that entail the dissociation of husband and wife, by the intrusion of a person
other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral.
These techniques (heterologous artificial insemination and fertilization) infringe the
child's right to be born of a father and mother known to him and bound to each other by
marriage. They betray the spouses' "right to become a father and a mother only through
each other."
4. ETHICAL ISSUES RELATED TO SURROGACY:
➢ Immoral Contracts

This is an idealized picture, which is increasingly being challenged by many. A major

objection is that these contracts are immoral, and therefore should not be enforced on that
basis alone. Most churches are against surrogacy for this reason. According to a survey for
the U.S. Congress (1988), all religious groups represented in the United States were against
surrogate motherhood. The approach of the “Congregation for the Doctrine of the Faith” of
the Catholic Church is typical. Surrogate motherhood is contrary to the unity of marriage
and to the dignity of the procreation of the human person. Surrogate motherhood
represents an objective failure to meet the obligations of maternal love, of conjugal fidelity
and of responsible motherhood; it offends the dignity and the right of the child to be
conceived, carried in the womb, brought into the world and brought up by his own parents; it
sets up, to the detriment of families, a division between the physical, psychological and moral
elements which constitute those families.

The legislators should see that the “Civil law is regulated according to the fundamental
norms of the moral law in matters concerning human rights, human life and the institution of
the family.”
➢ Commodification

However, the Commodification essentially says that a woman should not have the right to
contract, i.e. to transfer even a limited use of her body, because in doing so she would be
treating it as a commodity. The proponents of the commodification argument perhaps give “A
Law & Economics” Approach to Gestational Surrogacy Contracts.

As economic point of view is added to our instant case as well. Thereby the concept is of
“Commodification” and thus shouldn’t be allowed.

But civil liberties do not always guarantee reproductive liberties. India has a vibrant
feminist movement, democratic traditions, and liberal abortion and contraception laws, but its
historical focus on population control, is combined with a culture.

There would be many legal questions encasing surrogacy contract as to

1) Whether surrogacy agreements are against public policy? What would be appropriate
damages for breaches of the contract? Would they be monetary, or would they require
specific performance?
2) Whether payment of fee in lieu of surrogacy contract violates child trafficking law? Is it
payment for services rendered or for the child?
3) Would prohibition of surrogate contract violate constitutional rights to privacy or rights to
procreate?
4) Who would be the legal mother? Who should participate in decisions affecting the welfare
of the fetus and the newborn?
5) What would be the status of surrogate child in the absence of grant of citizenship?

If basic reproductive health needs are more available to Indian women as surrogates than as
mothers of their own children, then Indian women will prefer bearing the child of others than
their own’s.

Thus, women selling their services are against the values of the family, community and
human dignity. Low surrogacy costs, coupled with the casual legal environment, have
therefore made India a popular fertility destination. This is despite the potential stigma
attached to serving as a surrogate in India, which compels many Indian women to do so
quietly and to live apart from their families during the duration of their pregnancies,
interferes with nature and leads to exploitation of poor women in underdeveloped countries
who sell their bodies for money. On the other hand, active legislative intervention is required
to facilitate correct uses of the new technology. It is high time that the Indian Legislature
grapples with the issues arising out of use of new reproductive technologies and relinquishes
the cocooned approach to legalization of surrogacy adopted hitherto.
Thus James is not entitled to any share in Swaroop’s property.
 PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, this Hon’ble Court may be pleased to:

REJECT, the Appeal.

HOLD that the adoption of Kranti is valid and thereby she is entitled to the share in the
property of Swaroop.

HOLD, that James as a surrogate child has no right in the property of Swaroop. And
thereby uphold the decision of the Sessions Court was valid and thereby sustainable in
law pertaining to the share to Kranti in Swaroop’s property.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of
justice, equity and good conscience.

ALL OF THIS IS RESPECTFULLY SUBMITTED

AND FOR THIS THE RESPONDENTS SHALL FOREVER PRAY

COUNSEL FOR THE RESPONDENT