Upgrad LLM

regarding memorial

Kusum vs. Devika and one other. 1. The issue of infertility amongst otherwise healthy married couple has been a matter of great concern worldwide. An immense desire to have a child by have-nots has led the medical scientists to evolve innovative reproductive techniques to bless such couples with a child. 2. Various types of Assisted Reproductive Techniques (ART) have been developed globally to deal with the issue of infertility amongst the married couple. �Surrogacy� is one such type of Assisted Reproductive Technique. 3. Durgaprasad and Devika make a happily married Indivan couple, marital knot tied on 15th May 2007. Married last seven years and blessed with all physical comforts, married life is flowing like a song for them except for one issue, they are not blessed with a child yet. 4. A craving desire to have a child makes the couple to seek medical advice from a plethora of best known doctors in Indiva. Both being advised to go through a series of medical tests, which lead to a well-reasoned conclusion that the birth of a child is not possible as Devika�s womb is not mature enough to sustain the growth of a child in a mother�s womb. 5. After deliberations on various types of Assisted Reproductive Techniques (ART), the doctors suggest the couple to go for �Commercial Surrogacy�. Surrogacy, one type of Assisted Reproductive Technique, is the process of caring and delivering a child for another person. Whereas, commercial surrogacy involves payment of monetary consideration to the Surrogate mother. A hunt begins in June 2014 to find a suitable woman willing to give her womb for rent i.e. a �Surrogate Mother�. 6. Kusum is one such woman, who belongs to a mediocre family. Her husband has recently lost a job. The couple has a single child who unfortunately is deaf and dumb and for education needs to be sent to a special school at heavy cost. Kusum and her husband are for the purpose of education of child, in an imminent need of money 7. Durgaprasad and Devika approach Kusum and after verifying her health status and other credentials, request her to be a �Surrogate Mother� which Kusum and her husband willingly accept for the welfare of their child. 8. A written contract is signed on 15th of July, 2014 between Kusum as a �Surrogate Mother� and Durgaprasad and Devika. The main terms of the contract are as follows:- a. The parties to the contract would never disclose the fact of commercial surrogacy to a third person. b. To protect health, for nurturing a child in her womb during pregnancy and for delivering the child, Kusum would be paid a consideration of Rs. Five Lakhs only. c. After the birth of the child, the child would be immediately handed over to the custody of Devika. d. After the birth of the child, Kusum i.e. �Surrogate Mother� would cease to have any relation with the child. 9. The copy of the contract has not been given to Kusum. In a period of a year i.e in June, 2015, Kusum delivers the child, which is immediately handed over to Devika and Durgaprasad and now all is well. 10. After approximately a period of two years i.e. in July, 2017, Kusum and her husband develop an urge to claim back the custody of the child. They approach the doctor concerned, who flatly refuse any kind of assistance to them in the matter. Somehow Kusum manages to get the address of Durgaprasad & Devika and to the utter surprise and shock to both of them, reach to their house and claim custody of the child. Bewildered couple blatantly refuse to do so. 11. An attempt on the part of Kusum and her husband to claim the custody of the child before all the courts below has turned out to be futile as the courts have dismissed their plea for one reason or the other. 12. The Petition as regards to the custody of the child claimed by Kusum is now before the Supreme Court of Indiva by way of Special Leave, which has been granted and is enlisted for final hearing. The issues mainly argued before the courts below covered the legality of the contract of �commercial surrogacy�, the rights of surrogate child, the rights of surrogate mother, human exploitation in commercial surrogacy and enforcement of surrogacy contracts inter alia amongst others. Please help in preparation of argument for both the side.



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