Single biological father granted lawful guardianship of child born through surrogacy
Saurabh Malik
Chandigarh, November 23
The Punjab and Haryana High Court has emphasised the substantial contributions of the Indian diaspora to society, culture, and the economy as it granted permission for a three-year-old child and his biological father to go to Australia.
The court’s decision came on a petition filed by the father and the child born through a surrogacy arrangement in India.
The decision is significant as this is the first time a single biological father has been granted lawful guardianship of a child born through surrogacy.
“The child may go to Australia with his father and may or may not return to India, but the Indian diaspora abroad is well known to contribute immensely towards our society, culture and economy,” Justice Anupinder Singh Grewal of the high court asserted.
The matter was brought to the high court’s notice following the Australian government’s objections to the child’s legal status due to the vagueness of laws in India. The petitioners’ counsel had sought permission for the 35-year-old father to take the child to Australia as he was the de-facto and de-jure guardian and there was no objection to the move by the surrogate mother.
The counsel also referred to a letter issued by the Australian government’s department of home affairs. Among other things, it stated that the child was born via a surrogacy arrangement in India with only one commissioning parent. As the laws in India were unclear, a court order was required, confirming that the “commissioning parent” or the father had the child’s full legal custody, the right to remove him from India and the legal right to determine where he should live.
Justice Grewal asserted the child’s fate and future were at stake. The child would stare at an uncertain future in case the father was not declared the lawful guardian. He was being brought up by his 60-year-old grandmother. This court would not allow a situation where a child would be a destitute, abandoned or left to fend for himself.
The petitioner-single parent would be in a better position to provide education, material comforts and moral support for the proper upbringing of the child. The education and upbringing of the child would not only shape the child’s future but the nation as well.
Referencing the words of William Wordsworth, “The child is the father of the Man,” Justice Grewal asserted today’s children would shape the nation’s future as they were the greatest gift to humanity. It was necessary to impart proper education to them and inculcate moral values to enable them to grow as responsible citizens of the country
Allowing the petition, Justice Grewal declared the father the sole lawful guardian, making it clear that he would have the child’s legal custody, right to determine where he would reside and right to remove him from India. The Bench also “deeply appreciated” the valuable assistance rendered by the amicus curiae Tanu Bedi and counsel for the parties.
