In CRWP-460-2023-PUNJ HC- P&H HC issues notice on petition of sole commissioning parent seeking permission to take his child born out of surrogacy in India to Australia
Justice Sanjay Vashisth [17-01-2023]

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Read Order: Master Eric Thind and Another v. Union of India and Others 

 

Monika Rahar

 

Chandigarh, January 18, 2023: The High Court of Punjab and Haryana has issued notice to the Union of India and the State of Punjab in response to a writ seeking permission to sole commissioning parent to take his child (three-year) born through surrogacy before the new surrogacy law came into force, to Australia, since the Australian authorities sought Court order owing to “unclear” surrogacy regulation in India. 

 

The Bench of Justice Sanjay Vashisth was approached by Master Eric Thind (a three year old surrogate child) and his sole commissioning parent (Harsimren Singh, aged 35 years) seeking a writ of Habeas Corpus permitting Mr. Singh to take the three-year old child to Australia with him, being his de-facto and de-jure guardian. 

 

The child took birth via surrogacy in December 2019, i.e. before enactment of the Surrogacy (Regulation) Act, 2021, which came into force on December 25, 2021. 

 

In July 2022, a letter was issued by the Australian Government, Department of Home Affairs, stating that the Indian legislation in respect of surrogacy was limited. The letter stated, “India legalized commercial surrogacy in 2001, however, it still lacks a regulatory framework for the industry.” Further, it was also stated in the letter that since the child was born via a surrogacy arrangement in India with only one commissioning parent the laws in India are unclear, therefore, a court order should be provided that confirms that the commissioning parent (the sponsor) has full legal custody of you, the right to remove you from India and the legal right to determine where you shall live. 

 

The court order should also stipulated that no other parties involved in the surrogacy arrangement, including the person who donated the egg, have any legal rights to you”, the letter added. 

 

Relying upon the DNA report, the petitioners’ counsel submitted that Harsimren Singh, was the biological father of the child as his paternity matched greater than 99.99%. He further submitted that the surrogatory mother of the child did not make any claim or objection for taking the child to Australia. It was lastly submitted by the Counsel that the surrogatory child took birth before the enactment of the Surrogacy (Regulation) Act, 2021 which does not have retrospective effect. 

 

The Court adjourned the matter to February 02, 2023, for further consideration. Meanwhile, the Court added that the respondents may file their respective reply, if any, on or before the next date of hearing with copies in advance to the opposite counsel. 

 

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