Team Code: CN-23-A

Team Code: CN-23-A

IN THE SUPREME COURT OF PERUCIA

In the matter of Civil Appellate Jurisdiction

(Under Article 133 of Constitution of Perucia)

Civil Appeal No. ____/20__

In the matter of

Abram……………………………………………… Appellant
versus

Shashwat …………………………………….…. Respondent

1|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Memorial on the behalf of Respondent

2|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Table of Contents.
Abbreviations............................................................................................................................3

Index of Authorities.................................................................................................................4

Statement of Jurisdiction.........................................................................................................6

Statement of Facts....................................................................................................................7

Statement of Issues...................................................................................................................9

Summary of Arguments........................................................................................................10

Advanced Arguments.............................................................................................................11

Issue 1..................................................................................................................................11

Issue 2..................................................................................................................................14

Issue 3..................................................................................................................................17

Issue 4..................................................................................................................................20

Annexure I..............................................................................................................................24

Annexure II.............................................................................................................................25

3|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Abbreviations

& And

AIR All India Reporter

Anr. Another

ART Act Assisted Reproductive Technology Act, 2021

Hon’ble Honourable

ICA, 1872 Indian Contract Act, 1872

JJ Act Juvenile Justice Act

Ltd. Limited

Ors. Others

PC Privy Council

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

Supp Supplementary

Surrogacy Act Surrogacy (Regulation) Act, 2021

v. Versus

4|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Index of Authorities

CONSTITUTIONAL PROVISIONS

Article 133------------------------------------------------------------------------------------------5, 9, 10
Article 134-A--------------------------------------------------------------------------------------5, 9, 10

STATUTES

Indian Contract Act, 1872-------------------------------------------------------------------------14, 16

Surrogacy Act, 2021------------------------------------------------------------------------------------13

CASES

Baby Manji Yamada v. Union of India------------------------------------------------------------15

Bankipur Club Ltd. v. CIT---------------------------------------------------------------------------12
Burdick v. Grimshaw------------------------------------------------------------------------------19, 21
Cole-Mc Intyre-Norfleet Co. v. Holloway---------------------------------------------------------17
D'Accardi v. Chater-----------------------------------------------------------------------------------21
Drake v. Drake-------------------------------------------------------------------------------------20, 21
Express Newspaper Ltd. v. State of Madras------------------------------------------------------12
Goldberg v. Robertson--------------------------------------------------------------------------------20
Jan Balaz v. Anand Municipality-------------------------------------------------------------------15
M Satyanarayana v. State of Karnataka----------------------------------------------------------12
Menees----------------------------------------------------------------------------------------------------20
Rajeshwari v. Puran Indoria------------------------------------------------------------------------11
Rup Singh v. Bakhtawar Singh And Ors.---------------------------------------------------------20
State Bank of India v. N Sundara Money---------------------------------------------------------12
Syedana Tahur v. State of Bombay-----------------------------------------------------------------12

ANNEXURE

Annexure I-------------------------------------------------------------------------------------------------6
Annexure II------------------------------------------------------------------------------------------------7

5|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

PRINCIPLE

agreement sub silentio---------------------------------------------------------------------------------17

Equitable Adoption------------------------------------------------------------------------------------17
Equity-----------------------------------------------------------------------------------------------------17

6|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Statement of Jurisdiction

The appellant has approached this Court under Article 133 of Constitution of Perucia, after
obtaining the certificate through an oral application made under Article 134-A 1 from the High
Court of Cati.

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to
civil matters

2
[(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India 3[if the High Court certifies under
Article 134A—]

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.]

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of law as
to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this Article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one
Judge of a High Court.

1
134A. Certificate for appeal to the Supreme Court.
Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of
Article 132 or clause (1) of Article 133, or clause (1) of Article 134,
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the
passing or making of such judgment, decree, final order or sentence,
determine, as soon as may be after such passing or making, the question whether a certificate of the nature
referred to in clause (1) of Article 132, or clause (1) of Article 133 or, as the case may be, sub-clause (c) of
clause (1) of Article 134, may be given in respect of that case.
2
Subs. by the Constitution (Thirtieth Amendment) Act, 1972, s. 2, for cl. (1) (w.e.f. 27-2-1973).
3
Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 18, for “if the High Court certifies” (w.e.f.
1- 8-1979).
7|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Statement of Facts

For the sake of brevity and convenience of this honourable court the fact of present case is
summarised as follows:

1. Mr. and Mrs. Chopra, a married couple (aged 38 &37) belongs to a reputed industrial
family. The couple found themselves that they were not capable of conception, owing
it to infertility. After few days they came to know about the procedure of surrogacy
practiced in EBC clinic in the city of Cati.
2. The couple approached to ART Clinic of EBC Hospital whereby, executing a non-
Disclosure and Confidentially Agreement, an appointment was booked with the
leading doctor in this field, Dr. Goswami. After getting to know about surrogacy they
were ready to extend their family through it, for this they approached their relatives
for a surrogate mother.
3. Later on, EBC Hospital found a potential candidate in Ms. Khan, who agreed to carry
Mr. & Mrs. Mr. & Mrs. Chopra surrogate child. Ms. Khan, a widow aged about 32
years, was already a mother of 3 years old daughter Alia.
4. Afterwards, they make a contract of surrogacy with the terms and conditions. (Refer
to Annexure I). Same was signed by both parties and was registered duly with stamp.
5. The embryo was handled in the clinic and thereafter, the same was implanted in Ms.
Khan’s body. Soon after, she conceived, and intending parents were informed about
the good news.
6. Ms. Khan frequently visited the hospital for regular check-ups and met Dr. Goswami
for his recommendations. All seemed well, until the latter half of the seventh month of
pregnancy when she started felling emotionally attached to the child.
7. Later, one fine day, during the seventh month of Ms. Khan's pregnancy, Mr. & Mrs.
Chopra hailed their fate after they naturally conceived a child. When this information
reached her, her feelings for the child within her grew even more.
8. In the latter half of eight months of pregnancy Ms. Khan decided that she wouldn't be
able to give up on child. But due to obligation arising out of contract she felt bound
and imprisoned, thus she decided to abscond and never be found in City of Cati again.

8|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

9. During the last week of her eight months of pregnancy, she executed her plan. Just
before absconding she wrote a letter informing the hospital and intending parents
about her disappearance. And in the letter, she apologizes for this decision and said
“please let me adopt this child”. She sent the letter by post to Mr. And Mrs. Mr. &
Mrs. Chopra and to Dr. Goswami. (Annexure II)
10. After receiving the letter, Mr. and Mrs. Chopra personally searched for whereabouts
of Ms. Khan's for few weeks but they didn't approach authorities as they do not want
to reveal their incompetency to media. They couldn't trace Ms. Khan and they
accepted their fate and lived with their natural born child.
11. Thereafter, Mrs. Chopra gave birth to boy child named him Shashwat. And Ms. Khan
also gave birth to a boy child named him Abram.
12. Abram was very hardworking and studious. He obtained first rank in prestigious
engineering entrance exam of Perucia. While packing for his shift to Perucia he found
a copy of contract signed between Mr. And Mrs. Chopra and Ms. Khan. Thus, Abram
realised that Ms. Khan was not his biological mother.
13. Abram came to Cati, in order to meet his parents, where Mr. & Mrs. Chopra family
resided, after reaching there he got a news that his biological parents died in a flight
crash a year of ago. Now, all property and business belong to Shashwat, being the
only successor. After knowing all this Abram claim in Mr. Mr. & Mrs. Chopra
property as a successor based on surrogacy contract before Shashwat.
14. Abram filled a suit for claiming right on the property of Mr & Mrs. Chopra in District
court of Cati, where civil court ruled in favour of Abram. Now against the civil court
order, Shashwat appealed in High court of Cati, which overturned the Civil court
order. Later the counsel of Abram through an oral application made before High court
obtained a certificate to appeal before supreme court

Supreme court accepted the appeal and decided to hear the case.

9|Page
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Statement of Issues

1. Whether the appeal is maintainable before the Supreme Court of Perucia?

2. Whether the Surrogacy Contract was valid between Mr. and Mrs. Chopra and Ms.
Khan under the Surrogacy (Regulation) Act, 2021?
3. Whether Abram stood adopted by Ms. Khan?
4. Whether Abram has any right in the property of the Mr. & Mrs. Chopra?

10 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Summary of Arguments

1. Whether the appeal is maintainable before the Supreme Court of Perucia?

The appeal filed before the Supreme Court of Perucia is not maintainable in the
hon’ble Court as the appellant has wrongly invoked the Article-133 of the
Constitution of Perucia, as the certificate obtained under Article 134-A does not
establish any involvement of a substantial question of law and also the High Court of
Cati erred in issuing the certificate without giving any reasons in support thereof.
The appeal should be dismissed and order of the High Court should be upheld.

2. Whether the Surrogacy Contract was valid between Mr. and Mrs. Chopra and Ms.
Khan under the Surrogacy (Regulation) Act, 2021?
The contract formed under the Surrogacy Act is not valid. Since Ms. Khan accepted
the money from Mr. & Mrs. Chopra for the education of her daughter, Alia, which
commercialise the surrogacy which is against the public policy and therefore
according to the section 24 of ICA, 1872, it is not valid in the eyes of law.

3. Whether Abram stood adopted by Ms. Khan?

The Abram stand adopted by Ms. Khan as till his legal age from his birth the
upbringing was done by the her and the Mr. & Mrs. Chopra did not took any legal
action for the same which implies that the Abram stood adopted by Ms. Khan.

4. Whether Abram has any right in the property of the Mr. & Mrs. Chopra?
Since the Abram is adopted by Ms. Khan after birth and contract stand null and void
therefore the Abram does not have any right in the property of Mr. & Mrs. Chopra.
As held by High Court of Cati, Abram does not have any right in the property of Mr.
& Mrs. Chopra.

11 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Advanced Arguments

ISSUE 1
Whether the appeal is maintainable before the Supreme Court of Perucia?

My humble submission is No, the learned counsel has wrongly invoked jurisdiction of Article
133. And therefore, it is not maintainable in the hon’ble Court.

The said appeal is filed under the Article 133 after getting a certificate from the High Court
of Cati under Article 134-A through an oral application. The said appeal does not involve a
substantial question of law as it should be of general importance because it is a property
dispute between the parties and of no public importance. 
In the case of Rajeshwari v. Puran Indoria4, The supreme court held that ‘ The
proper test for determining whether a question of law is raised in the case is
substantial would be whether it is general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by Supreme Court
or by Privy Council or by Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the highest Court or
the general principles to be applied in determining the question are well settled
and there is a mere question of applying those principles or that plea raised is
palpably absurd, the question would not be a substantial question of law. Thus, a
question of law would be a substantial question of law if it directly and
substantially affects the rights of the parties and if it was not covered by a
decision of the Supreme Court or of the Privy Council or of the Federal Court
In the current case the issue is not of general importance since the subject matter of
dispute is property which is a private matter of parties and therefore it’s not a
substantial question of law. Since it does not involve a substantial question of law
which is contradictory of Article 133(1)(a) and should be dismissed by the hon’ble
Court.
4
Rajeshwari v. Puran Indoria (2005) 7 SCC 60, 65-66 (para 5): (2005) 7 JT 630 following Chunilal V. Mehta
and Sons Ltd., v. Century Spg. And Mfg. Co. Ltd., 1962 Supp (3) SCR 549: AIR 1962 SC 1314 and relying on
Raghunath Prasad Singh v. Dy. Commr. Of Partbgarh, (1927) 54 IA 126: AIR 1927 PC 110
12 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

In the case of State Bank of India v. N Sundara Money Supreme Court held
that no certificate will lie unless besides a substantial question of law of general
importance being involved, the High Court must be satisfied that the said
question needs to be authoritatively decided by Supreme Court.5
In the said judgement it is said by the hon’ble Court that it should involve a substantial
question of law of general importance and in the opinion of High Court it should be
decided by Supreme Court, but in the present case the substantial question of law does
not exist and therefore appeal should be dismissed.
In the case of Express Newspaper Ltd. v. State of Madras the Supreme Court
of India held that Certificate issued by High Court must specify in the certificate
the substantial question of law requiring determination by Supreme Court and
reasons in support of the issuance of the certificate. In the facts of current case
no substantial question of law involved and hence the certificate granted by the
High Court revoked. 6
In the case of Bankipur Club Ltd. v. CIT7, “The High Court not giving any
reasons in support thereof.”
In the above-mentioned case, the Supreme Court held that:
“The High court while granting those certificates did not give any reason in
support of them that being so that certificate can’t be considered as having been
given according to law. Hence the appeal brought on the strength of those
certificate must be held to non-maintainable.”
In the case of M Satyanarayana v. State of Karnataka8, the hon’ble Supreme
Court held that “The Certificate given may be revoked by Supreme Court” and
therefore appeal dismissed.
In the above case mentioned, the Hon’ble Supreme Court dismissed the appeal under the
Rule 5-A of Order XV of the Supreme Court Rules, 1966.

5
AIR 1976 SC 1111: (1976) 1 SCC 822
6
AIR 1981 SC 908: (1981) 2 SCC 479
7
(1972) 4 SCC 386
8
(1986) 2 SCC 512
13 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

In the case of Syedana Tahur v. State of Bombay 9, the Supreme Court held
that
“Even after certificate is granted by High Court and the Supreme Court may
refuse to hear after appeal if it is satisfied that the appeal is not competent”
Therefore, the appeal should not be maintainable before the Supreme Court of Perucia and
the order of the High Court of Cati should be upheld.

9
AIR 1958 SC 253
14 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

ISSUE 2
Whether the Surrogacy Contract was valid between Mr. and Mrs. Chopra and Ms. Khan
under the Surrogacy (Regulation) Act, 2021?
My humble submission is No
Contract between Mr. & Mrs. Chopra and Ms. Khan was invalid as per the Surrogacy Act,
2021, section 4 clause 2 sub-clause (b) specially said that
“when it is only for altruistic surrogacy procedure10”
And in the sub-clause (c) of aforesaid clause and section:
“when it is not for commercial purposes or for commercialisation of surrogacy
or surrogacy procedures”
In this sub-clause, it is clearly mentioned that the surrogacy should not for the commercial
purposes or for any commercialisation of surrogacy 11 or any procedure of surrogacy, but here
as per the contract in the Annexure I-A clause 9 Ms. Khan was to accept money for the
education for her daughter, Alia, which was paid by the Mr. & Mrs. Chopra before she could
abscond, as per mentioned in the fact sheet, and therefore it cleared that the surrogacy was
not of “Altruistic nature”.
Due to this transaction between Ms. Khan and Mr. & Mrs. Chopra Surrogacy Contract
became commercial in Nature.
According to Surrogacy Act commercial surrogacy completely prohibited and punishable in
the eyes of law under section 3812 of Surrogacy Act.

10
Surrogacy Act, 2(b): “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees,
remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed
expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the
surrogate mother or her dependents or her representative
11
Surrogacy Act, 2(g): “commercial surrogacy” means commercialisation of surrogacy services or procedures or
its component services or component procedures including selling or buying of human embryo or trading in the
sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate
motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or
kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such
other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;
12
Surrogacy Act, 38. (1) No person, organisation, surrogacy clinic, laboratory or clinical establishment of any
kind shall-
(a) undertake commercial surrogacy, provide commercial surrogacy or its related component procedures or
services in any form or run a racket or an organised group to empanel or select surrogate mothers or use
individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures, at such
clinics, laboratories or at any other place;
(b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated, any
advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;
15 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

In the landmark case “Baby Manji Yamada v. Union of India13”

Definition of commercial surrogacy expressly given as in para 13 of judgement as
13. "Commercial surrogacy" is a form of surrogacy in which a gestational
carrier is paid to carry a child to maturity in her womb and is usually resorted
to by well off infertile couples who can afford the cost involved or people who
save and borrow in order to complete their dream of being parents. This
medical procedure is legal in several countries including in India where due to
excellent infrastructure, high international demand and ready availability of
poor surrogates it is reaching industry proportions. Commercial surrogacy is
sometimes referred to by the emotionally charged and potentially offensive
terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
And, also adding one another case that’s Jan Balaz v. Anand Municipality14
‘The said case is of commercial surrogacy in which Supreme court gave some
guidelines:
a) Commercial surrogacy is inconsistent with the dignity of Indian
womanhood and therefore violative of Article 21 of constitution
b) Commercial surrogacy is immoral and is imposed to public policy and
therefore void under section 23 of contract Act.
c) Commercial surrogacy should be prohibited.
According to Section 10 of Indian Contract Act, 1872, the condition of lawful object must be
fulfilled in order to form a valid contract, but in this case, there was absence lawful object as

(c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or
children born through surrogacy;
(d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner
whatsoever;
(e) sell human embryo or gametes for the purpose of surrogacy and run an agency, a racket or an organisation
for selling, purchasing or trading in human embryos or gametes for the purpose of surrogacy;
(f) import or shall help in getting imported in, whatsoever manner, the human embryo or human gametes for
surrogacy or for surrogacy procedures; and
(g) conduct sex selection in any form for surrogacy
(2) Notwithstanding anything contained in the Indian Penal Code, contraventions of the provisions of clauses (a)
to (g) of sub-section (1) by any person shall be an offence punishable with imprisonment for a term which may
extend to ten years and with fine which may extend to ten lakh rupees.
13
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518
14
2009 online Guj 3913
16 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

it was commercial in nature as mentioned in contract clause IX between Ms. Khan & Mr. &
Mrs. Chopra as she asked for expenses of her daughter’s education till graduation.
With the above said provision and cases, concluding argument advanced that the Surrogacy
Contract was invalid between Mr. & Mrs. Chopra and Ms. Khan under the Surrogacy Act
2021.

17 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

ISSUE 3
Whether Abram stood adopted by Ms. Khan?

My humble submission is Yes

The adoption of Abram was done by Ms. Khan as held by High court by Cati.

As per the facts of the present case, during the last few months of pregnancy Ms. Khan
gradually developed motherly feelings towards the child in her womb and as per the
Surrogacy Act, 2021, according Section 9, the surrogate mother is bound to deliver the
surrogate child to intending parents. However, she intimated to Mr. & Mrs. Chopra through a
letter that she wanted to adopt the child, thereafter she absconded with the child and her
daughter, Alia from the city of Cati.

As per para–No. 9, Ms. Khan in her letter to Mr. & Mrs. Chopra and Dr. Goswami, made an
express offer to adopt unborn surrogate child (Abram), to which there was acquiescence on
the part of Mr. & Mrs. Chopra. Since they did search for whereabouts of the child for a very
short period and did not take any legal action or approached to any legal authorities for the
same. Due to the fear of injury to their reputation in the society, they discontinued the search
and they continued with their lives and remained a happy family by keeping silence on the
letter made by her to them. (para no. 10, fact sheet)

As per Indian Contract Act, 1872, “the general rule is that a proposal15 is not accepted by
mere silence on the part of promisee, yet it does not mean that an acceptance always has to be
given in so many words. Under certain circumstances, silence of the party to whom proposal
was made coupled with their conduct may constitute an acceptance. The said principle
popularly is known as agreement sub silentio.”16

In the case of Cole-Mc Intyre-Norfleet Co. v. Holloway17

“It was held that silence for an unreasonable time operated as an acceptance of
an offer.”

15
Section 2 (a) When one person signifies to another his willingness to do or to abstain from doing anything,
with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.
16
Contract-I (Law of Contract-1 with specific relief act), R. K. Bangia, Sixth Edition, 2009 pg.-no. 29.
17
(1919, Tenn.) 2I4 S. W. 8I7,
18 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

When silence amounts to consent: “agreement sub silentio”

“Whenever there is a legal duty to speak and the required person does not do
anything regarding it then the silence is inferred as consent for the thing done.”

Hence, we can infer from the conduct of Mr. & Mrs. Chopra that they gave implied consent
for adoption.

The concept of Equitable Adoption is practised in USA and adoption of Abram by Ms.
Khan is in the form of equitable adoption.

Before understanding the meaning of equitable adoption, must to know the concept of equity
and the application of equity in India.

Equity means fair, just, & reasonable interpretation and application of common
law as it originates from original civil law. Equity means the administration of
Justice. The laws related to equity have evolved through precedent and the
intention is to grant equitable rights and remedies to the parties. The decisions of
equity have largely been based on the judge’s discretion and understanding of
the fair and just cause. Equity dates back to centuries ago and is still as relevant,
so is the case with law. Law and equity both are important for justice. Where the
rigidities of the law threaten justice, equity prevails, and where equity has no
remedy the letter of law is followed. Justice, thus, depends upon both and thus,
both must be consulted in order to deliver justice.

With this, concept of equitable adoption is as “Equitable Adoption is an adoption recognised

by law in order to allow claims in cases in which there is an implied or express contract to
adopt and clear evidence of an intention to adopt but no performance of procedures required
by statute for an adoption.” It is also known as Adoption by Estoppel.

There is an established legal doctrine of equitable adoption practiced in US.

Equitable Adoption applied in US in many of the cases, those with this adoption many of
children got a family and have the right in family here a demand to the court that this

19 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Equitable Adoption must be applied in India though the scenario of children who don't have
family got family and hence it became the legal duty of parents to protect their child.

The doctrine has been long recognized in New Jersey. Burdick v. Grimshaw18.

As stated in Burdick, 233

“It is now firmly established that an oral agreement to adopt. where there has
been a full and faithful performance on the part of the adoptive child but which
was never consummated by formal adoption proceedings during the life of the
adoptive parent, will, upon the death of the latter and when equity and justice so
requires, be enforced to the extent of decreeing that such child occupies in equity
the status of an adopted child, entitled to the same right of inheritance from so
much of his foster parent's estate that remains undisposed of by will or otherwise,
as he would have been had he been a natural born child.”

With the above-mentioned provision and cases, the respondent concludes that after the
application of Equitable Adoption, Abram stood adopted by Ms. Khan hence, he should have
right in Ms. Khan's property not in the property of Mr. and Mrs. Chopra.

18
113 NJ Eq 591, 1684 186 (Ch. Div. 1933).
20 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

ISSUE 4
Whether Abram has any right in the property of the Mr. & Mrs. Chopra?

My humble submission is No.

The appeal of getting rights has absolutely no merit and has to be dismissed.

The appellant is surrogate child of Mr. & Mrs. Chopra but was brought up by Ms Khan. Even
in government documents, Abram's full name was Abram Khan and birth certificate was
issued in the name of Ms. Khan. From the argument advanced of Issue Number 3, the
concept of equitable adoption has been raised.

In the case of Rup Singh v. Bakhtawar Singh And Ors.19,

“It was held by the Apex Court, by upholding the judgement of civil court of
granting one room and five bighas of land out of the properties of father of
respondents, who had brought up him as his son based on the principle of
equity.”

In the above mentioned case, the adoption was not done, but the appellant’s upbringing was
done by the father of respondents. Therefore, court held that the right of appellant is in the
property of father of respondents.

Justice Missouri has recognized ‘equitable adoption’ as a judicial remedy in equity. In the
case Drake v. Drake20, Menees21, Goldberg v. Robertson22, it is concluded that

“A court of equity may, where justice requires, decree a person to have rights of
an adopted child for purposes of inheritance. Although, it does not create the
legal relationship of parent and child. It arose out of contract enforcement. The
purpose of the doctrine of equitable adoption was to avoid unjust results from the
application of intestacy statutes where there had been a contract to adopt.”

19
1986 Supp SCC 681
20
43 S.W.2d 556, 558 (Mo. banc 1931);
21
223 S.W.2d at 415;
22
615 S.W.2d 59, 62 (Mo. banc 1981),
21 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Consent for Adoption was impliedly given by Mr. and Mrs. Chopra as they didn't approach to
the concerned Authority to do the same and even, they searched only for a week and then got
busy in their life. They had got the letter of adoption but they didn't react on the same, thus
implying implied consent to give him in adoption.

In government documents, Abram's full name was Abram Khan and birth certificate was
issued in the name of Ms. Khan.

And here in present case, there is equitable adoption by Ms. Khan. He was raised by Ms.
Khan and adoption of Abram was clear by her side. According to J. Smart in Drake v.
Drake23 in the above stated case the “Need for the doctrine arises when proposed adoptive
parents die intestate without ever having conducted a formal adoption. The doctrine is
invoked to allow the ‘supposed-to-have been adopted child’ to take an intestate share’.

The doctrine has been long recognized in New Jersey. Burdick v. Grimshaw24.

As stated in Burdick, 233

“It is now firmly established that an oral agreement to adopt. where there has
been a full and faithful performance on the part of the adoptive child but which
was never consummated by formal adoption proceedings during the life of the
adoptive parent, will, upon the death of the latter and when equity and justice so
requires, be enforced to the extent of decreeing that such child occupies in equity
the status of an adopted child, entitled to the same right of inheritance from so
much of his foster parent's estate that remains undisposed of by will or otherwise,
as he would have been had he been a natural born child.”

In the case of D'Accardi v. Chater25, the Supreme Court of New Jersey

“Holding adopted child entitled under New Jersey law permitting equitable
adoption to receive social security benefits even though the adoption process was
not completed before death of adoptive parent.”

23
Supra 20
24
113 NJ Eq 591, 1684 186 (Ch. Div. 1933).
25
Supra 18
22 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Based on the above cited cases, it is clear that in equitable adoption, the right of the adopted
son is in the property of the adopting parent.

Thus, property rights of Abram concerned with Ms. Khan as per the facts and circumstances,
he is supposed to be an adopted child of Ms. Khan as per Equitable Adoption. Thus, appellant
has no right to claim in the property rights of Mr. & Mrs. Chopra.

23 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Prayer
In light of facts presented, issues raised, argument advanced and authorities cited, that the
counsel on behalf of respondent humbly prays before this honourable court that it may be
pleased to adjudge and declare that:
1. The appeal filed is not maintainable as it is not of general importance.
2. The Contract between Ms. Khan and Mr. & Mrs. Chopra is not valid as the object of
contract is not legal.
3. The adoption of Abram was valid as per the principle of equitable Adoption
4. Abram is not a successor in the property of Mr. And Mrs Chopra

Or Pass any other order that the court may deems fit in the light of Justice, Equity & Good
Conscience, and for this, the act of kindness of your Lordship(s) the respondent faction shall
be duly bound ever pray.

Counsel on the behalf of Respondent

24 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Annexure I
Contract between Ms. Khan and Mr. & Mrs. Chopra.
Annexure I-A
1. Market rate for the cost of surrogacy at INR xyz.
2. Market rate for the cost of all unsuccessful attempts of surrogacy at INR xyz.
3. Market rate of medical costs for the surrogate mother at INR xyz.
4. Market rate for each hospital visit for the surrogate mother.
5. Market rate for the cost of medical tests for surrogate mother at INR xyz.
6. Market rate for the cost of a hospital room and other services during childbirth at INR
xyz.
7. Cost of the surrogate mother being unable to work during pregnancy at INR xyz.
8. Insurance coverage for surrogate mother covering postpartum delivery complications
up to thirty-six months after delivery at INR xyz.
9. Expenses for meeting the educational cost of the first child of the surrogate mother,
Alia, up to her graduation.
10. Miscellaneous expenses to the extent of INR xyz.
Annexure I-B
Other relevant terms and conditions casting an obligation over the contracting parties
involved:
1. The surrogate mother to be of a fit and healthy condition, both mentally and
physically, and to remain to be fit and healthy and not work during the term of
pregnancy.
2. The surrogate mother is to bear the child in good-will and after the birth, to surrender
the child and relinquish all the rights to the intending parents.
3. The intending parents, under no circumstances, to decline acceptance of the child after
birth, irrespective of its physical or mental condition.
4. The surrogate mother is to be less than 35 years of age.
5. The surrogate mother is to be free from the consumption of alcohol, cigarettes, or any
other form of intoxication.

25 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

6. The Surrogate (unborn) Child to be the successor to all the properties belonging to the
Mr. & Mrs. Chopra.

26 | P a g e
Memorial on the behalf of Respondent
 Team Code: CN-23-A

Annexure II
The relevant abstract from the letter can be found hereinunder as:

“My sincere apologies to Mr. and Mrs. Chopra, who for all these months have only treated
me as their own. I could not imagine the level of pain I bring to you and would never be able
to completely release myself from this guilt. However, at this point, I have become helpless
and the love I possess for the child growing within me has taken over any other feeling that I
might embark upon. I apologize to the EBC hospital, as well as Dr. Goswami, who has taken
great care of me. I understand I will never become worthy of your pardon, but just believe
that I have become helpless. I think even almighty wanted me to have this child, as he blessed
your womb with another child despite doctors declaring you unfit for the same. I have
decided to raise the baby within me as my own child. Please let me adopt this child. This is
the demand of the Almighty.”

27 | P a g e
Memorial on the behalf of Respondent