surrogacy bill 2016 Moot

ON THE BEHALF OF RESPODENT Page 1
IN THE COURT OF HON’BLE
HIGH COURT
DELTA
IN THE MATTER OF
LAKSHMI ……………………..………PROSECUTION
VS.
MR. AND MRS. BHATIA …..…...………….Respondent
Gagan deep goyal
B.A,LLB
Sem -10th
Sec-A
1507001043

INDEX
1) LIST OF ABBRIVATIONS………………………………………3
2) INDEX OF AUTHORITIES …………………….………………..4
I. TABLE OF STATUTES
II. WEBSITES
III. BOOKS
3) STATEMENT OF JURISDICTION………………….…………...5
4) STATEMENTS OF FACTS ……………………………………...7
5) ISSUES……………….……………………………….…………11
6) SUMMARY OF ARGUMENTS………………………………...12
7) ARGUMENTS ADVANCED…………………………………...13
8) PRAYER ………………………………………………………...18

LIST OF ABBREVIATIONS
1. H.C High Court
2. S.C. Supreme Court
3 .A.I.R All India Reports
4. P&H Punjab and Haryana
5. Hon’ble Honourable
6. vs. Versus
7. Ors. Others
8.Vol. Volume
9.SCC Supreme Court Cases
10.Sec. Section

INDEX OF AUTHORITIES
TABLE OF STATUTES
1) THE SURROGACY (REGULATION) Bill, 2016
2) The Indian Council for Medical Research (guidelines), 2002
WEBSITES
1. https://indiankanoon.org/
2. https://www.lawfinderlive.com
3. http://www.advocatekhoj.com/
BOOKS
1. Surrogacy in India - A Law in The Making by Anil Malhotra & Ranjit Malhotra
2. Indian constitutional law by M.P Jain

STATEMENT OF JURISDICTION
The respondent humbly submits this memorandum for the petition before this learned court
under the
Article-226 of Constitution of India:-
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High

Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32

STATEMENT OF FACT
1. That Mr. and Mrs. Bhatia were married in 1998 in India, in a traditional Hindu wedding
and have been living in Australia since 2005.
2. That they are now desirous of having a child, as a result of infertility issues that plagues
both of them.
3. That Aware of the changes brought about in the Surrogacy bill, 2016, they approach their
blood relatives to act as the surrogate mother.
4. That they are unable to convince blood relatives to carry their child.
5. That 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.
6. That 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.
7. That 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.
8. That the reputation of Evvy Hospital and Research Centre (EHRC) attracted Mr. and
Mrs. Bhatia.
9. That they got in touch with EHRC through Ms. Lakshmi, an adopted child of Mr.
Bhatia’s mother’s first cousin.
10. That 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.
11. That Dr. Kashish and Mr. and Mrs. Bhatia speak, negotiate and agree on certain terms
and conditions as part of the Surrogacy Agreement.
12. That 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.
13. That Other terms of the Surrogacy Agreement included:
i) 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;

ii) The intended parents shall not refuse to take the child after birth;
iii) Surrogacy would be a gestational surrogacy;
iv) Surrogate mother to be in good physical and mental health;
v) Surrogate mother to have carried and delivered at least one child;
vi) Previous pregnancy of surrogate mother to be free of complications and full term;
vii) Surrogate mother to be less than forty years of age;
viii) Surrogate mother to be non-smoking and having no prior history of substance or
alcohol abuse.
13) That 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.
14) That Ms. Lakshmi shows her willingness to be the surrogate mother.
15) That Ms. Lakshmi had a daughter of her own as a first child who had been delivered as
a healthy baby girl.
16) That this positive experience motivated her to say yes to this surrogate agreement.
17) That she had not met Mr. Bhatia before in her growing up years; however her recent
interactions with him have been warm and cordial.
18) That she was also delighted to get time off work and spend time with her extended
family.
19) That 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.
20) That She clarifies various details regarding the agreement including the terms relating to
cost and risk involved in the surrogacy.
21) That After finalizing the contractual terms and conditions both parties signed the
agreement.
22) That 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.”
23) That 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.

24) That 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.
25) That Both parties then approach the appropriate authority under the Surrogacy bill,
2016.
26) That 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.
27) That Once the IVF rounds commence, good news arrives fast as the IVF is successful in
the first round.
28) That 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.
29) That Early on in the pregnancy, Ms. Lakshmi grows attached to the baby, emotionally.
30) That More so, as the child is physically related to her.
31) That As time goes by, her anxiety of separation from the unborn child grows.
32) That 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.
33) That She said that she does not want to continue with the pregnancy, and wants an
abortion.
34) That 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.
35) That Dr. Kashish tried to reason with her, but to no avail.
36) That She was left with no other choice than to speak with the intending couple.
37) That the intending couple were distraught at the turn of events and tried their level best
to convince her otherwise.
38) That they flew down to India and make the proposition to pay her money in lieu of her
pregnancy.
39) That When the outcome is not what they desired, they decide to commence talks
another day.

40) That 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.
41) That With the failure of talks, Ms. Lakshmi was asked to join her employer EHRC back
immediately.
42) That She resumed her duties at EHRC the next day.
43) That 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.
44) That She was also repeatedly summoned by Dr. Kashish and asked to reconsider and
reconcile the matter.
45) That Ms. Lakshmi finally decided to go to court to stop the harassment.
46) That She files a suit for harassment and seeks compensation of five lakhs rupees.
47) That During pendency of this case, she also files a case before the High Court of Delta at
Indiva under the Surrogacy bill, 2016 claiming that this was a commercial surrogacy and
praying for punishment for the intending couple and EHRC.
48) That this case has come up before the High Court of Delta at Indiva, and the matter is
listed for final arguments.
49) That 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.
50) That Mr. and Mrs. Bhatia pray that this was not a commercial surrogacy and that the
surrogacy agreement violated.
51) That They pray for fulfilment of the contractual obligations.

Issue
1. Whether the eligibility certificate issued by the Appropriate Authority based on “close
relatives.” Is valid?
2. Whether the stand of “Commercial surrogacy” taken by prosecution is right?
3. Whether the Surrogacy Agreement between prosecution and respondent under section 6,
Surrogacy bill, 2016 is enforceable by the law?
-

SUMMARY OF ARGUMENTS
relatives.” is valid?
It is humbly submitted before the Hon’ble high court that the certificate given by
appropriate authority is valid because the prosecution and respondent are known to each
other.
It is humbly submitted before the Hon’ble high court that the allegation of prosecution is
not true. This is not commercial surrogacy and not covered under section 2(f) of the act.
The respondent of bear the expenses of prosecution nothing else.
Surrogacy bill, 2016 is enforceable by the law ?
It is humbly submitted before the Hon’ble high court that the agreement between
prosecution and respondent are valid. During making the agreement both the parties
follow the all condition. The respondent explains everything to prosecution.

ARGUMENTS ADVANCE
relatives.” Is valid?
It is humbly submitted before the Hon’ble high court that the certificate given by
appropriate authority is valid.
According to the facts, that the prosecution and respondent are get in touch with EHRC
through Ms. Lakshmi (prosecution). The prosecution is a adopted child of Mr. Bhatia’s
mother’s first cousin.
4. On and from the date of commencement of this Act,-
(b) the surrogate mother is in possession of an eligibility certificate issued by the
appropriate authority on fulfilment of the following conditions, namely:—
(I) no woman, other than an ever married woman having a child of her own and between
the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help
in surrogacy by donating her egg or oocyte or otherwise;
(II) no person, other than a close relative of the intending couple, shall act as a surrogate
mother and be permitted to undergo surrogacy procedures as per the provisions of this
Act;
(III) no women shall act as a surrogate mother or help in surrogacy in any way, by
providing gametes or by carrying the pregnancy, more than once in her lifetime:
Provided that the number of attempts for surrogacy procedures on the surrogate mother
shall be such as may be prescribed;
(IV) a certificate of medical and psychological fitness for surrogacy and surrogacy
procedures from a registered medical practitioner

It is submitted that the eligibility certificate issued by appropriate authority base on close
relation is valid because the prosecution and respondent are known to each other. The
prosecution is cousin in relation with respondent. Since the word close relative not define
in the act there for it is so subjective that the authority issue the certificate and they also
considered as cousin of Mr. Bhatia under the definition of close relative. Further the
counsel want to bring the notice of this Hon’ble court that the prosecution has put not any
question upon the appropriate authority issuing the certificate it clearly showing the mala-
fide intention of prosecution.
It is humbly submitted before the Hon’ble high court that the allegation of prosecution is
not true.
According to the facts, that the prosecution and respondent are get in touch with EHRC
through Ms. Lakshmi (prosecution). The prosecution is a adopted child of Mr. Bhatia’s
mother’s first cousin. Dr. Kashish and respondent speak, negotiate and agree on certain
terms and conditions as part of the Surrogacy Agreement.
The Indian Council for Medical Researchhas given guidelines in the year 2002,
approved by the government in 2005, regulating AssistedReproductive Technology
procedures
 Surrogacy arrangement will continue to be governed by contract amongst parties,
which will contain all the terms requiring consent of surrogate mother to bear
child, agreement of her husband and other family members for the same, medical
procedures of artificial insemination, reimbursement of all reasonable expenses
for carrying child to full term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement should not be for
commercial purposes.
 A surrogacy arrangement should provide for financial support for surrogate child
in the event of death of the commissioning couple or individual before delivery of

the child, or divorce between the intended parents and subsequent willingness of
none to take delivery of the child.
 A surrogacy contract should necessarily take care of life insurance cover for
surrogate mother.
2. In this Act, unless the context otherwise requires,
(f) “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 incurred on
the surrogate mother and the insurance coverage for the surrogate mother;
(b) “altruistic surrogacy" means the surrogacy in which no charges, expenses, fees,
remuneration or monetary incentive of whatever nature, except the medical 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;
It is submitted that there is altruistic surrogacy both the parties are known to each other.
There is no money given by respondent to prosecution. The respondent has only bear the
medial expenses of prosecution nothing else. This is compulsory for respondent to bear
the expenses of prosecution under this act.1 Both prosecution and respondent are
mutually agreed and sign the agreement and proper certificate has been issued by the
appropriate authority giving the agreement legal essence.
Surrogacy Act, 2016 is enforceable by law?
It is humbly submitted before the Hon’ble high court that the agreement between
prosecution and respondent are valid.
1 Section-2(b) of THE SURROGACY (REGULATION) Act , 2016

According to the facts, that Dr. Kashish and respondent speak, negotiate and agree on
certain terms and conditions as part of the Surrogacy Agreement. The respondent was
specific that the surrogate (prosecution) 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:
i. That the prosecution will bear a child for the intending couple (in this case Mr. and
Mrs. Bhati respondent ), and surrender the child to them when the child is born
and relinquish the right of motherhood to the intended parents;
ii. The intended parents(respondent) shall not refuse to take the child after birth;
iii. Surrogacy would be a gestational surrogacy;
iv. Surrogate mother(prosecution) to be in good physical and mental health;
v. Surrogate mother(prosecution) to have carried and delivered at least one child;
vi. Previous pregnancy of surrogate mother(prosecution) to be free of complications
and full term;
vii. Surrogate mother(prosecution) to be less than forty years of age;
viii. Surrogate mother(prosecution) to be non-smoking and having no prior history of
substance or alcohol abuse.
Prosecution (Ms. Lakshmi), aged about 33 years old and an employee of EHRC was
approached by Dr.Kashish to carry the child for respondent (Mr. and Mrs.
Bhatia).Prosecution shows her willingness to be the surrogate mother. Prosecution 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 was also
delighted to get time off work and spend time with her extended family. Prosecution 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 Indian Council for Medical Research has given guidelines in the year 2002,
approved by the government in 2005, regulating Assisted Reproductive Technology
procedures

 Surrogacy arrangement will continue to be governed by contract amongst parties,
which will contain all the terms requiring consent of surrogate mother to bear
child, agreement of her husband and other family members for the same, medical
procedures of artificial insemination, reimbursement of all reasonable expenses
for carrying child to full term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement should not be for
commercial purposes.
6. No person shall seek or conduct surrogacy procedures unless he has—
(i) explained all known side effects and after effects of such procedures to the surrogate
mother concerned;
(ii) obtained in the prescribed form, the written informed consent of the surrogate mother
to undergo such procedures in the language she understands.
It is submitted that the agreement between prosecution and respondent are valid. They are
mutually agreed on agreement and signed also. The content of agreement is in English
but the respondent were read out to her and translated wherever she asked for, in her
vernacular language. Thus fulfilling the purpose of agreement in vernacular language. All
the condition is fulfilled by the respondent and prosecution and also mention in
agreement. The prosecution is well aware about the side effect and after effect of
surrogacy.

Prayer
Therefore,in light of the issued raised, argument advance and authorities cited. The counsel for the
respondent most humbly prays that the Hon’ble court be pleased to adjudge, hold and declare:-
The counsel submit to Hon’ble high court that this was not a commercial surrogacy
and that the surrogacy agreement violated. And give the direction to prosecution to give custody
of child to respondent.
And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
(SD/-)
Counsel on behalf of Respondent
Date:
Place:

surrogacy bill 2016 Moot

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