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.
