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NRI Father Granted Custody of Surrogate Child, a milestone for Oberoi Law chambers

The Punjab and Haryana High Court, in the matter of Master Eric Thind vs. UOI & Ors. CRWP-420-2023 (O&M), has granted lawful guardianship of a child born through surrogacy to the single biological father. The court has also granted permission for the father, an NRI, to take the child to Australia. The case involved a single father who had entered into a surrogacy arrangement with an Indian woman. The boy born in December 2019 was refused a visa by the Australian Embassy due to unclear Indian laws regarding surrogacy. The father sought a court declaration to confirm legal custody and take the child from India, stating no other parties involved in the surrogacy arrangement had any legal rights. The Australian Embassy contacted the Surrogacy (Regulation) Act-2021, which prohibits single men and unmarried women from adopting surrogates. The surrogate mother and her spouse supported the petition, but a district court in Punjab denied a request due to the lack of Punjab address. The high court, however, deemed the argument that the families were Punjabi residents plausible and noted that it has parens patriae jurisdiction when a child’s rights matter is before it. The court must protect the child’s interests, ensure his welfare, and provide necessary guidance. In a custody dispute between parents, the court has decided that the child’s best interests and welfare should be taken into account. The biological father is requesting a declaration that he is the only legitimate guardian. The kid’s perspective is frequently considered in these situations, the court observed, given that the youngster is old enough to make an informed decision. Due to his incapacity to make an educated decision, the four-year-old youngster is the only one claiming custody and legal guardianship. The father would be in a better position to give the kid an education, financial comforts, and moral support for a healthy upbringing because he would be a single parent, the court stressed. Additionally the court acknowledged that the surrogacy regulation did not have a retrospective effect.

The High Court, presided over by Justice Anupinder Singh Grewal, recognized the paramount importance of safeguarding the child’s welfare.

Key Considerations

The court’s decision underscores several key considerations in surrogacy-related custody disputes:

  1. Best Interests of the Child: The paramount consideration is the child’s best interests, encompassing their emotional, physical, and educational well-being.
  2. Parens Patriae Jurisdiction: Courts possess parens patriae jurisdiction, empowering them to act as guardians for children’s interests.
  3. Prospective Application of Laws: The 2021 Surrogacy (Regulation) Act, restricting surrogacy for single men, was deemed inapplicable to this case as the child was born before the law’s enactment.

The High Court’s ruling sets a precedent for NRI fathers seeking custody of surrogate children born in India. It encourages open dialogue and informed decision-making in surrogacy arrangements, emphasizing the child’s well-being as the guiding principle. The landmark decision highlights the evolving legal landscape surrounding surrogacy and the importance of considering the best interests of the child. It encourages transparency and informed decision-making in surrogacy arrangements, ensuring that the child’s well-being remains at the forefront.

The decision is a milestone for Advocate Gagan Oberoi and his team comprising of Adv Ayan Vasudeva, Adv Jaya Kumari, Adv Pooja Singh, and intern Tammana Bahl, there is no victory like teamwork.

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Author: Tammana Bahl

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