Moot proposition of surrogacy bill 2016

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MOOT PROPOSITION- BA. LLB. (SECTION-A)
Mr. and Mrs. Bhatia were married in 1998 in India, in a traditional Hindu wedding and have
been living in Australia since 2005. They are now desirous of having a child, as a result of
infertility issues that plagues both of them. Aware of the changes brought about in the
Surrogacy Act, 2016, they approach their blood relatives to act as the surrogate mother. They
are unable to convince blood relatives to carry their child. Women on both sides of the family
were unwilling to carry a child that belongs to Mr. Bhatia, as it is against the customary
practices of the community and is understood to be borderline incest. Mr. and Mrs. Bhatia have
gone as far as possible in the line of distant cousins, with no success in receiving acceptance
of a surrogate mother for their child. This means that they are not certain on who the surrogate
mother is, and are willing to provide for all expenses towards the health and welfare of the
surrogacy mother. The reputation of Evvy Hospital and Research Centre (EHRC)1 attracted
Mr. and Mrs. Bhatia. They got in touch with EHRC through Ms. Lakshmi, an adopted child of
Mr. Bhatia’s mother’s first cousin. Mr. and Mrs. Bhatia then speak to a series of doctors at the
EHRC before flying down from Australia for an appointment with Dr. Kashish. Dr. Kashish
and Mr. and Mrs. Bhatia speak, negotiate and agree on certain terms and conditions as part of
the Surrogacy Agreement. The couple were specific that the surrogate will not work during the
entire duration of pregnancy, beginning from the success of the IVF upto six months post-
delivery. Other terms of the Surrogacy Agreement included:
a) That the surrogate mother will bear a child for the intending couple (in this case Mr. and
Mrs. Bhatia), and surrender the child to them when the child is born and relinquish the right of
motherhood to the intended parents;
b) The intended parents shall not refuse to take the child after birth;
c) Surrogacy would be a gestational surrogacy;
d) Surrogate mother to be in good physical and mental health;
e) Surrogate mother to have carried and delivered at least one child;
f) Previous pregnancy of surrogate mother to be free of complications and full term;
g) Surrogate mother to be less than forty years of age;
h) Surrogate mother to be non-smoking and having no prior history of substance or alcohol
abuse.
Ms. Lakshmi, aged about 33 years old and an employee of EHRC was approached by Dr.
Kashish to carry the child for Mr. and Mrs. Bhatia. Ms. Lakshmi shows her willingness to be
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EHRC is situated in thestateof Delta, Indiva,isa world renowned In Vitro Fertilization (IVF) center with clientele
from across the globe. Their services areslated to be state of the art and have a high success rate, as opposed
to other fertility centers within and outside of Indiva. The Chairman of EHRC, Dr. Kashish is a specialist in the
field of human embryology. He also trains and grooms surrogate mothers, and has close ties with the local
adoption agency, should a parent require any of these servi ces, other than the traditional IVF treatment.

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the surrogate mother. Ms. Lakshmi had a daughter of her own as a first child who had been
delivered as a healthy baby girl. This positive experience motivated her to say yes to this
surrogate agreement. She had not met Mr. Bhatia before in her growing up years; however her
recent interactions with him have been warm and cordial. She was also delighted to get time
off work and spend time with her extended family. As Ms. Lakshmi is unable to read English,
the terms were read out to her and translated wherever she asked for, in her vernacular
language. She clarifies various details regarding the agreement including the terms relating to
cost and risk involved in the surrogacy. After finalizing the contractual terms and conditions
both parties signed the agreement. The week before the scheduled date for commencement of
the medical procedure, Ms. Lakshmi makes a request to Mr. and Mrs. Bhatia to help, if possible,
her daughter who will be in Australia for the duration of six months, as part of a “School
Student Foreign Exchange Program.” But Ms. Lakshmi was willing to pay for the expenses
towards her daughter’s stay as it was sponsored by the International School and an external
funding agency. Mr. and Mrs. Bhatia oblige, as they have been engaged in similar kinds of
benevolent work in the past, especially when children of relatives and friends have come in the
past to visit, work or study in Australia. Both parties then approach the appropriate authority
under the Surrogacy Act, 2016. The surrogate mother eligibility certificate, which is granted
within thirty days; and the intending couple certificate of proven infertility were granted by the
District Medical Board in Delta, Indiva. Once the IVF rounds commence, good news arrives
fast as the IVF is successful in the first round. Three month thereafter, Ms. Lakshmi goes on
unpaid leave from her employer, till childbirth and six months thereafter as per the terms of the
agreement. Early on in the pregnancy, Ms. Lakshmi grows attached to the baby, emotionally.
More so, as the child is physically related to her. As time goes by, her anxiety of separation
from the unborn child grows. In her fifth month of pregnancy, she expressed her request of
being unable to continue with the pregnancy as a result of mental health issues, to Dr. Kashish
in one of her scheduled appointment. She said that she does not want to continue with the
pregnancy, and wants an abortion. On probing further, Dr. Kashish was able to bring out the
real reason that Ms. Lakshmi wants to keep the baby and the excuse of having an abortion was
only to get away from the hospital and the city to raise the baby by herself. Dr. Kashish tried
to reason with her, but to no avail. She was left with no other choice than to speak with the
intending couple. The intending couple were distraught at the turn of events and tried their
level best to convince her otherwise. They flew down to India and make the proposition to pay
her money in lieu of her pregnancy. When the outcome is not what they desired, they decide to
commence talks another day. However, even after numerous meetings the outcome ended in a
deadlock, with the last meeting held on August 2nd concluding in heated arguments between
the intending couple and Ms. Lakshmi. With the failure of talks, Ms. Lakshmi was asked to
join her employer EHRC back immediately. She resumed her duties at EHRC the next day.
After joining she was continuously harassed with extra work, cold attitude of workers and being
summoned by her superiors on a daily basis with complaints. She was also repeatedly
summoned by Dr. Kashish and asked to reconsider and reconcile the matter. Ms. Lakshmi
finally decided to go to court to stop the harassment. She files a suit for harassment and seeks
compensation of five lakhs rupees. During pendency of this case, she also files a case before
the High Court of Delta at Indiva under the Surrogacy Act, 2016 claiming that this was a
commercial surrogacy and praying for punishment for the intending couple and EHRC. This

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case has come up before the High Court of Delta at Indiva, and the matter is listed for final
arguments. Ms. Lakshmi prays for the surrogacy agreement to be treated as a commercial
surrogacy and for the relief of punishment for initiation of commercial surrogacy, with the
additional relief of legal and physical rights over the child. Mr. and Mrs. Bhatia pray that this
was not a commercial surrogacy and that the surrogacy agreement violated. They pray for
fulfilment of the contractual obligations.
Issues to be addressed:
1. Challenge the eligibility certificate issued by the Appropriate Authority based on “close
relatives.”
2. Challenge the stand of “Commercial surrogacy” taken by Ms. Lakshmi
3. Enforceability of the Surrogacy Agreement between Ms. Lakshmi and Mr. and Mrs. Bhatia
under section 6, Surrogacy Act, 2016.
Note- The laws and Constitution of Delta, Indiva are similar to that of Republic of India
on surrogacy. Students can frame additional issues,if any, based on the Factual and Legal
aspects.