Moot Court Problem 2

Harry Smith has businesses across five countries which require him to travel frequently. His
wife, Missy Smith is a former super model and socialite. After three years of marriage, Harry
was desirous of having a child. However, the couple was unable to have a child. On seeking
medical advice and after medical examination, it was learned that due to a genetic condition,
Missy was infertile and would not be able to carry the baby. As Harry continued to be keen to
have a child, Harry and Missy sought the assistance of medical experts at HAPPY
MOTHERS fertility clinic. Harry and Missy were advised that they could opt for surrogacy
and the surrogate mother would also be the egg donor. Harry and Missy completed all the
formalities and agreed to bear all the medical and other expenses involved. Midori, the
proposed surrogate, was contacted and treatment commenced. Harry and Missy would
regularly contact Midori to enquire about her health and the health of the baby. After seven
months and one week of the pregnancy, Harry and Missy informed HAPPY MOTHERS
fertility clinic and Midori that they had divorced and were no longer desirous of going ahead
with the pregnancy. While they did not disclose the reasons leading up to their divorce, they
stated that as a result of their divorce, they may not now be able to provide an environment
conducive to the well-being of the baby. As the eighth month had commenced and it was a
matter of weeks before the child would be born, it was uncertain what effect such termination
of pregnancy would have on the health of Midori. On 1st January, 2022, Baby J was born in
Sunrise Hospital. Both, Harry and Missy refused to take Baby J. Baby J continues to be in the
care of the Sunrise Hospital.

Baby J, through Midori, HAPPY MOTHERS fertility clinic and Sunrise Hospital have jointly
filed a public interest litigation against Harry, Missy and the State to not only protect the
rights of Baby J but also to seek the intervention of the highest court in framing guidelines to
protect and ensure that no more babies suffer the same fate as Baby J.

Issues framed:

(a) Do Midori, HAPPY MOTHERS fertility clinic and Sunrise Hospital have the locus to file
this petition?

(b) Were Harry and Missy justified in requesting termination of pregnancy in the eighth
month on the ground of their divorce?

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(c) Was HAPPY MOTHERS fertility clinic justified in rejecting Harry and Missy's request
on the ground of Midori's health being possibly at risk?

(d) Are there guidelines presently in place to protect and provide for a baby born of surrogacy
whose parents refuse to take custody of such baby after her/his birth?