TEAM CODE: R

13TH NATIONAL LEVEL MOOT COURT COMPETITION,

2019

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

ANJALI MENON , ISK FERTILITY CLINIC

& BLUEBELL HOSPITAL……………….(PETITIONER)
V.
AKASH TALREJA , TINA TALREJA
& THE STATE…………………….(RESPONDENT)

MEMORIAL SUBMITTED ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF AKASH TALREJA , TINA

TALREJA & THE STATE.
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 2

INDEX OF AUTHORITIES 3-4

 LEGISLATION
 CASES REFERRED
 BOOKS REFERRED
 LAW LEXICON AND DICTIONARIES
 LEGAL DATABASES

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 6-7

QUESTIONS PRESENTED 8

SUMMARY OF PLEADINGS 9-10

PLEADINGS 11-28

1. Do Anjali Menon, ISK fertility clinic and Bluebell Hospital have the locus to file this
petition?
2. Were Akash and Tina justified in requesting termination of pregnancy in eighth
month on ground of their divorce?
3. Was ISK fertility clinic justified in rejecting Akash and Tina’s request on the ground
of Anjali’s health being possibly at risk?
4. Are there guidelines presently in place to protect and provide for a baby born of
surrogacy whose parents refuse to take custody of such baby after his or her birth?

PRAYER 29

MEMORIAL ON BEHALF OF THE RESPONDENT

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LIST OF ABBREVIATIONS

A.I.R All India Reporters

Art. Article

DPs Directive Policy

FRs Fundamental Rights

Hon’ble Honorable

IPC Indian Penal Code

MTP Medical Termination Of Pregnancy Act

PIL Public Interest Litigation

S Section

SC Supreme Court

SCR Supreme Court Reporters

V. Versus

MEMORIAL ON BEHALF OF THE RESPONDENT

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INDEX OF AUTHORITIES
LEGISLATION PAGE NO.

1. THE INDIAN CONSTITUTION ACT, 1950 12

2. MEDICAL TERMINATION OF PREGNANCY(AMENDMENT)ACT,2002 14
3. THE INDIAN CONTRACT ACT, 1872 13
4. SPECIFIC RELIEF (AMENDMENT) ACT, 2018 13

CASES REFERRED
 Baby Manji Yamada v. Union of India 2008 13 SCC 518. 23
 Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568 12
 S.P Gupta v. Union of India, 1981 Supp SCC 87 12
 Bandhua Mukti Morcha v. UOI,(1984)3 SCC 161and(1997)10 SCC549 12
 Roe v. Wade U.S. 113 (1973) 16
 Savita Sachin Patil & anr. Vs. Union of India (2017),13 SCC 436 22
 Case of X v. Union of India (2016) 14 SCC 382 21
 Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151of 2009 23

BOOKS REFERRED

 V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED., 2013).

 DR. D.D. BASU, CONSTITUTIONAL LAW OF INDIA, (8TH ED., 2009).
 P.M. BAKSHI, THE CONSTITUION OF INDIA, (14TH ED., 2017).
 DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010).
 R.S. BEDI, , THE CONSTITUION OF INDIA, (10TH ED., 2013).
 DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA, (1ST ED., 2008).
 DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA,54TH EDITION, 2017.
 C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW, FOURTH EDITION, 2007.
 R.K. BANGIA, INDIAN CONTRACT ACT, THIRTEENTH EDITION, 2008.
 R.K. BANGIA, CONTRACT-II, FOURTH EDITION, 2009.
 DR. J.J.R. UPADHYAYA, ADMINISTRATIVE LAW, TENTH EDITION, 2017.

MEMORIAL ON BEHALF OF THE RESPONDENT

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LAW LEXICON AND DICTIONARIES

 Bryan A. Garner, BLACK‟S LAW DICTIONARY, (2nd ed., 2004).

LEGAL DATABASES

 WWW.YOURARTICLELIBRARY.COM
 WWW.LEGALSERVICEINDIA.COM
 WWW.INDIANKANOON.ORG
 WWW.LAWRATO.COM
 WWW.MANUPATRA.COM
 WWW.INDIANCASELAWS.ORG
 WWW.INDLAW.COM
 WWW.JUDIC.NIC.IN
 WWW.LEXISNEXIS.COM
 WWW.SCCONLINE.CO.IN
 WWW.WESTLAW.COM
 WWW.NCBI.NLM.NIH.GOV

IMPORTANT DEIFINITION:
1. The petitioner for the purpose of this memorandum shall be Anjali Menon, ISK Fertility
clinic and Bluebell Hospital.
2. The respondents for the purpose of the First & Fourth issue shall be Akash , Tina & The
State. The respondents for the purpose for the Second & Third Issue shall be Akash and Tina
.

MEMORIAL ON BEHALF OF THE RESPONDENT

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of India under Article 32 of the
Constitution of India,1950.

The respondents have appeared to the Hon’ble Supreme Court of India in response to the
petitions filed by the petitioners.

MEMORIAL ON BEHALF OF THE RESPONDENT

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STATEMENT OF FACTS

For the sake of brevity and convenience of the hon’ble court the facts of the case are
summarized as follows:

 That the respondent Akash Talreja a multinational businessman and his wife Tina is
Super model and socialite.

 That after 3 years of marriage, Akash was desirous of having a child but were unable to
conceive. On seeking medical advice and after examination it was learned that Tina was
infertile due to a genetic condition.

 That as Akash continued to have desire to have a child so they started seeking assistance
of medical experts at ISK fertility clinic and they were advised that they could opt for
surrogacy and the surrogate mother would also be the egg donor.

 That the couple completed all the formalities and agreed to bear all the medical and other
expenses involved. Anjali Menon was the proposed surrogate and the treatment
commenced, and the couple would regularly contact Anjali and enquire about her health
and the health of the baby.

 That after seven months and one week of the pregnancy the couple informed ISK fertility
clinic and Anjali that they were in the process of filing divorce by mutual consent they
were no longer desirous of going ahead with the pregnancy. While they did not disclose
the reason leading of their divorce, they would not be able to provide an environment
conducive to the well being of the baby.

 That as the eighth month had already commenced and it was a matter of weeks before the
child would be born

 That on 1st of January, 2019 Baby Q was born in Bluebell Hospital and the couple refused
to take the baby and the baby continues to be in the care of the Bluebell Hospital.

MEMORIAL ON BEHALF OF THE RESPONDENT

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 That Baby Q, through Anjali, ISK fertility clinic and Bluebell Hospital have jointly filed
a public interest litigation against Akash, Tina and the State to not only protect the rights
of Baby Q but also seek the intervention of the highest court in framing guidelines to
protect and ensure that no more babies suffer the same fate as Baby Q.

MEMORIAL ON BEHALF OF THE RESPONDENT

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QUESTIONS PRESENTED

ISSUE I

DO ANJALI MENON, ISK FERTILITY CLINIC AND BLUEBELL HOSPITAL

HAVE THE LOCUS TO FILE THIS PETITION?

ISSUE II

WERE AKASH AND TINA JUSTIFIED IN REQUESTING TERMINATION OF

PREGNANCY IN EIGHTH MONTH ON GROUND OF THEIR DIVORCE?

ISSUE III

WAS ISK FERTILITY CLINIC JUSTIFIED IN REJECTING AKASH AND TINA’S

REQUEST ON THE GROUND OF ANJALI’S HEALTH BEING POSSIBLY AT
RISK?

ISSUE IV

ARE THERE GUIDELINES PRESENTLY IN PLACE TO PROTECT AND

PROVIDE FOR A BABY BORN OF SURROGACY WHOSE PARENTS REFUE TO
TAKE CUSTODY OF SUCH BABY AFTER HIS OR HER BIRTH?

MEMORIAL ON BEHALF OF THE RESPONDENT

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SUMMARY OF PLEADING

ISSUE I: DO ANJALI MENON, ISK FERTILITY CLINIC AND BLUEBELL

HOSPITAL HAVE THE LOCUS TO FILE THIS PETITION?

It is humbly submitted before the Hon’ble Supreme Court that the petitioner i.e, Anjali
Menon, ISK Fertility Clinic and BlueBell Hospital do not have the locus to file this petition
as:

 The petition has been filed for private interest and lacks public concern
 Execution of contract amongst the parties which bind them together.

ISSUE II: WERE AKASH AND TINA JUSTIFIED IN REQUESTING

TERMINATION OF PREGNANCY IN EIGHTH MONTH ON GROUND OF THEIR
DIVORCE?

It is humbly submitted before the Hon’ble Supreme Court that Mr. Akash and Mrs. Tina
were justified in requesting the termination of pregnancy in eighth month on ground of
their divorce as laid down under under :

 The Court has the power to decide if it was reasonable and just for Termination of
Pregnancy in the 8th month.
 Right Of Abortion of Commissioning Mother.
 Right that a Child is entitled to get once he/she is born

MEMORIAL ON BEHALF OF THE RESPONDENT

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ISSUE III: WAS ISK FERTILITY CLINIC JUSTIFIED IN REJECTING AKASH

AND TINA’S REQUEST ON THE GROUND OF ANJALI’S HEALTH BEING
POSSIBLY AT RISK?

It is humbly submitted before the Hon’ble Supreme Court that ISK Fertility Clinic was not
justified in rejecting Akash & Tina’s request on ground of Anjali’s Health due to the
following reasons:

 Advancement of Medical Technology of Termination of Pregnancy

 Judgments of Courts in which courts held higher risk due to pregnancy than due to
termination of pregnancy.

ISSUE IV: ARE THERE GUIDELINES PRESENTLY IN PLACE TO PROTECT

AND PROVIDE FOR A BABY BORN OF SURROGACY WHOSE PARENTS REFUE
TO TAKE CUSTODY OF SUCH BABY AFTER HIS OR HER BIRTH?

Surrogacy is regulated in India under these legal instruments as following:

1.Indian Council of Medical Research (ICMR) Guidelines 2005

2.Assisted Reproductive Technology (Regulation) Bill 2010, Draft Bill awaiting enforcement
3. Law commission Report by Government of India Report No. 228, Need For Legislation to
Regulate Assisted Reproductive Technology Clinics As Well as Rights & Obligations of
Parties to Surrogacy” year 20091

4. Home Ministry Regulations on Surrogacy to FRRO – VISA, January 2013

Although all of these legal instrument emphasize on Surrogacy Contract for the sake of
Protection of Child in case parents refuse to take custody of the child.

1
Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations
of Parties to Surrogacy, “, Law Commission , Government of India , Report No. 228. August 2009 .
http://lawcommissionofindia.nic.in/reports/report228.pdf visited on 10/3/19

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PLEADING

I. DO ANJALI MENON, ISK FERTILITY CLINIC AND BLUEBELL HOSPITAL

HAVE THE LOCUS TO FILE THIS PETITION?

It is humbly submitted before the Hon’ble Supreme Court that the petitioner i.e, Anjali
Menon, ISK Fertility Clinic and BlueBell Hospital do not have the locus to file this petition
as PIL could have been filed only by :-

Aggrieved Party ( Baby Q who is an infant and will not be able to file a petition )

And on behalf of Baby Q ,

a. Public Spirited Person ( Petitioner not being a Public Spirited Person)

b. Social Action Group ( Petitioner being Financially Interested Group)

Rather in this case Petitioner had entered into a Surrogacy Contract with the Respondent for
the purpose of Surrogacy which makes the petitioner an INTRESTED PARTY. Hence they
do not have the Locus to file a PIL before the court of Law.

Public interest Litigation, in simple words, means, litigation filed in a court of law, for the
protection of “Public Interest. Any matter where the interest of public at large is affected can
be redressed by filing a Public Interest Litigation in a court of law. It is not defined in any
statute or in any act. It has been interpreted by judges to consider the intent of public at large.
Although, the main and only focus of such litigation is “Public Interest” there are various
areas where a Public Interest Litigation can be filed.

Any public spirited citizen can move/approach the court for the public cause (in the interests
of the public or public welfare) by filing a petition:

1. In Supreme Court under Art.32 of the Constitution;

2. In High Court under Art.226 of the Constitution; and
3. In the Court of Magistrate under Sec.133, Cr. P.C.

With the view to regulate the abuse of PIL the apex court it has framed certain guidelines (to
govern the management and disposal of PILs.) The court must be careful to see that the

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petitioner who approaches it is acting bona fide and not for personal gain, private profit or
political or other oblique considerations. The court should not allow its process to be abused
by politicians and others to delay legitimate administrative action or to gain political
objectives.

The concept of public interest litigation as against the rule of locus was evolved by our courts
in the 1980s to help the weaker sections of society, who due to their poverty, ignorance and
illiteracy, were not able to assert their rights. Justice Krishna Iyer in Fertilser Kamgar
Union2 made a forceful plea that the “law should not be a closed shop”, else “the system may
crumble under the burden of its own insensitivity”. Thereafter in S.P Gupta3 (commonly
called the first Judges case) and in Bandhua Mukti Morcha4, Justice Bhagwati evolved the
concept of “public injury” and allowed a public spirited citizen to approach the court for
redressal of public injury relating to environment, human rights, administration of justice,
arbitrary action of the executive, investigation of cases involving persons occupying high-
public offices, etc.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is not
every letter which may be treated as a writ petition by the court. The court would be justified
in treating the letter as a writ petition only in the following cases-

(i) It is only where the letter is addressed by an aggrieved person or

(ii) A public spirited individual or

(iii) A social action group for enforcement of the constitutional or the legal rights of a person
in custody or of a class or group of persons who by reason of poverty, disability or socially or
economically disadvantaged position find it difficult to approach the court for redress.5

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware

2
Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568
3
S.P Gupta v. Union of India, 1981 Supp SCC 87
4
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 and (1997) 10 SCC 549
5
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence visited on 6/3/19

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of its abuse and equate any form of regulation with erosion of their fundamental rights. Under
these circumstances the Supreme Court of India is required to step in by incorporating safe
guards provided by the Civil Procedure Code in matters of stay orders /injunctions in the
arena of PIL.

PIL is a tool in hands of public spirited citizens who have a good motive behind the PIL and
to prevent it from becoming a weapon in the hands of those litigants who want to either
misuse this concept for either commercial gain or publicity the apex court has time and again
laid down various guidelines and by imposing costs on the frivolous public interest litigation
the courts have only strengthened their stance.

In the situation provided here Anjali Menon , Blue Bell Hospital and ISK Fertility Clinic do
not have the locus to file this petition as in the situation here the petitioner have a personal
and private Interest& are not concerned about the public at large .

It is also important to note the fact that Akash & Tina had entered into a contract with Anjali
Menon and ISK Fertility Clinic which makes the parties bound under contract for purpose of
Surrogacy . Thus the petitioner has substantial self interest which shows that the motive of
petition is not for Public Interest but for Self Interest. Hence they do not have the Locus to
file a PIL before the court of Law.

MEMORIAL ON BEHALF OF THE RESPONDENT

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II. WERE AKASH AND TINA JUSTIFIED IN REQUESTING TERMINATION OF

PREGNANCY IN EIGHTH MONTH ON GROUND OF THEIR DIVORCE?

It is humbly submitted before the Hon’ble Supreme Court that Mr. Akash and Mrs. Tina
were justified in requesting the termination of pregnancy in eighth month on ground of
their divorce as laid down under under :

2.1. Mr. Akash and Mrs. Tina are justified in requesting termination of pregnancy as
per The Medical Termination of Pregnancy Act, 1971:

Section 3(2) of the Medical Termination of Pregnancy Act, 1971, a pregnancy may be
terminated by a Registered Medical Practitioner-

(a) where the length of pregnancy does not exceed 12 weeks, if such medical
practitioner is, or

(b) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks,
if not less than two registered practitioners are, of the opinion, formed in good
faith, that –

(i). the continuance of the pregnancy would involve a risk to the life of the
pregnant women or of grave injury to her physical or mental health; or

(ii). there is a substantial risk that if the child is born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped.

In cases where such situation arises where the period of 20 weeks has surpassed ,
the termination of pregnancy can be carried out by medical practitioner only after
the court has passed orders for it. In the present case the petitioner inspite of being
informed of future possible divorce did not carry out any step to approach the court
so that termination of pregnancy could be performed. This shows petitioners lack of
interest for the welfare of child and their intention to haress the commissioning
parents.

Thus where in a situation the petitioner could attempt to approach the court for
possible termination of pregnancy , they did not take any such steps at the moment and
rejected the request of couple on their own part without any such valid reason.

MEMORIAL ON BEHALF OF THE RESPONDENT

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2.2. Right of Abortion of the Commissioning Mother

Earlier the right to abortion was not permitted and it was strongly opposed by the
society. The termination of pregnancy was termed to be a murder of the fetus. But due
to the change in time and technology, nowadays this right has been legally sanction
banned by most of the nations after the famous decision of Roe Vs Wade by the US
Supreme Court.

It is a woman's individual rights, right to her life, to her liberty, and to the pursuit of
her happiness, that sanctions her right to have an abortion. A women's reproductive
and sexual health and shape her reproductive choices. Reproductive rights are
internationally recognized as critical both to advancing women's human rights and to
promoting development. In recent years, governments from all over the world have
acknowledged and pledged to advance reproductive rights to an unprecedented
degree. Formal laws and policies are crucial indicators of government commitment to
promoting reproductive rights. Each and every women has an absolute right to have
control over her body, most often known as bodily rights.

A woman's right in this respect is doubtful because her right is dependant on certain
conditions: proof of risk to her life or grave injury to her physical or mental health,
substantial risk of physical or mental abnormalities to the child if born and a situation
where abortion could only save her life, all to be arrived at by the medical
practitioners. Can a woman request a medical practitioner to perform an abortion on
the ground that she does not want a child at that time? Where the liberty of the woman
is fully dependant on certain other factors, such are quest cannot be said to be just and
reasonable. The M.T.P. Act also does not classify the pregnancy period so that the
woman's interests and the state's interests could be given predominance in one's own
spheres.

It is submitted that a decision as to abortion may be entirely left with woman provided
she is sane and attained majority. Only in cases where an abortion may affect her life,
her freedom may be curtailed. All other restrictions on the right to abortion are
unwelcome. True, a woman's decision as to abortion may depend upon her physical
and mental health or the potential threat to the health of the child. Apart from these
reasons, there are also various important factors. She or the family may not be

MEMORIAL ON BEHALF OF THE RESPONDENT

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financially sound to welcome an addition. It may be a time when she wants to change
her profession, which requires free time and hard work. Her relationship with the
husband may virtually be on the verge of collapse and she may prefer not to have a
child from him, for it may possibly affect a future marriage. All these factors are quite
relevant and the Indian statute on abortion does not pay any respect to them. The
rights provided as well as the restrictions imposed under the statute show that the very
purpose of the state is to protect a living woman from dangers which may arise during
an abortion process.6

In the landmark case of Roe v. Wade7, legal case in which the U.S. Supreme Court on
January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is
unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the
court held that a set of Texas statutes criminalizing abortion in most instances violated
a woman’s constitutional right of privacy, which it found to be implicit in the liberty
guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any
state deprive any person of life, liberty, or property, without due process of law”).

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to
a procedure established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme

importance in a democratic society.” Iyer, J., has characterized Article 21 as “the
procedural magna carta protective of life and liberty.

This right has been held to be the heart of the Constitution, the most organic and
progressive provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal
liberty” by the “State” as defined in Article 12. Violation of the right by private
individuals is not within the preview of Article 21.

Article 21 secures two rights:

6
http://www.legalserviceindia.com/articles/adp_tion.html visited on 5 March 2019
7
410 U.S. 113 (1973)

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1) Right to life

2) Right to personal liberty

Article 21 applies to natural persons. The right is available to every person, citizen or
alien. Thus, even a foreigner can claim this right. It, however, does not entitle a
foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

Right to abortion is a species of right to privacy, which is again proclaimed a

continuance of the right to life under Article 21. It can also said to be including the
complete right of a woman over her reproductive organs. In the United States of
America, the Supreme Court held the right to privacy and ended the ban on birth
control back in 1965, in the case of Griswold v. Connecticut8. Eight years later, the
Supreme Court ruled the right to privacy included abortions in the landmark case of
Roe v. Wade. Freedom from interference in one's privacy and family life is protected
by Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil
and Political Rights Covenant, Article 11 of the American Convention, and Article
8(1) of the European Convention. The European Commission of Human Rights has
propounded in its judgments, like that in cases of Bruggemann and Scheuten v.
Federal Republic of Germany9 and Paton v. United Kingdom10 decisions one makes
about one's body, particularly one's reproductive capacity, lie squarely in the domain
of private decision-making.

Since right to life includes right to enjoy life with all the limbs and faculties, it implies
therefore that right to procreation and right to have control over reproductive organs
are included in the broader concept of right to life. In Kharak Singh vs. State of U.P.
and others, the Supreme Court has certainly interpreted article 21 and recognized that
a person has complete rights of control over his body organs and his ‘person’. Thus
Right to procreation and to have control over one's reproductive organs gives birth to
another right i.e. the right to abortion.

When the biological parents seek to compel the surrogate mother to have an abortion, she
makes the argument that she should be able to make decisions regarding her own body. On
the other hand, the biological parents argue that since the fetus is formed from their genetic

8
381 U.S. 479 (1965)
9
3 EHRR 244 1977
10
3 EHRR 408 1980

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material, it is theirs, so they should have control over what happens to it. They additionally
argue that they are the ones who will assume responsibility for the baby when it is born,
which gives them the right to choose what happens.

The most thought-provoking aspect of this case, in my opinion, is that it raises the question of
which rationale lays the right to have an abortion: autonomy over one’s body or the right to
decide whether to be a mother or not.

Thus, they are not only biologically responsible for the child, but are also socially responsible
for the child. The surrogate is the one carrying the fetus, but as soon as the baby is born she
gets to walk away. This, to me, is a matter of fairness. Is it fair for the surrogate mother to
make these parents care for a child that will probably only live in pain for a few days?

Also after the birth is given by the Surrogate Mother , the responsibility of the child comes
upon the commissioning mother and it would be her duty to take care of her and provide all
the rights a child is entitled to get. Thus since circumstances do not permit in the well being
of the child , Akash & Tina are justified in requesting termination of the child as it would be a
violation of Right to Life of Tina due to restrictive laws of Medical Termination of
Pregnancy Act.

2.3 Right that a Child is entitled to get once he/she is born

According to the United Nations Convention on the Rights of the Children – that India
ratified in 1992 – all children are born with fundamental rights.

And a right to achieve these dreams. Even though India’s children account for more than one-
third of its population, their interests have never been given priority. And their rights have
been violated every single day.

Universally child rights are defined by the United Nations and United Nations Convention on the
Rights of the Child (UNCRC). According to the UNCRC Child Rights are minimum entitlements
and freedoms that should be afforded to all persons below the age of 18 regardless of race,
colour, gender, language, religion, opinions, origins, wealth, birth status or ability and

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therefore apply to all people everywhere. The UN finds these rights interdependent and
indivisible, meaning that a right can not be fulfilled at the expense of another right.

The purpose of the UNCRC is to outline the basic human rights that should be afforded to
children. There are four broad classifications of these rights. These four categories cover all
civil, political, social, economic and cultural rights of every child.

Right to Survival – to life, health, nutrition, name, nationality

Right to Development – to education, care, leisure, recreation, cultural activities

Right to Protection – from exploitation, abuse, neglect

Right to Participation – to expression, information, thought, religion

Right to Survival: A child's right to survival begins when a child is born. Hence the right to
survival is inclusive of right to minimum standards of food, shelter and clothing, and the right
to live with dignity.

Right to Protection: A child has the right to be protected from neglect, exploitation and abuse
at home, and elsewhere.

Right to Participation: A child has a right to participate in any decision making that involves
him/her directly or indirectly. There are varying degrees of participation as per the age and
maturity of the child.

Right to Development: Children have the right to all forms of development: Emotional,
Mental and Physical. Emotional development is fulfilled by proper care and love of a support
system, mental development through education and learning and physical development
through recreation, play and nutrition.

Here in the case Baby Q will not be able to have a happy healthy family life as the couple
Tina & Akash had mutual consent to have Divorce arising out of personal reasons . Also both
Akash & Tina are engaged in such professional & Business lifestyle which would devoid the
child of love , attention & care which is the right of the child .

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Thus keeping in view the Right of Tina to not have baby as with right of abortion and having
concern with possibility of neglecting the child it was justified on the part of Akash & Tina
to request termination of pregnancy in the 8th month on the grounds of divorce.

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III. WAS ISK FERTILITY CLINIC JUSTIFIED IN REJECTING AKASH AND

TINA’S REQUEST ON THE GROUND OF ANJALI’S HEALTH BEING POSSIBLY
AT RISK?

It is humbly submitted before the Hon’ble Supreme Court that ISK Fertility Clinic was not
justified in rejecting Akash & Tina’s request on ground of Anjali’s Health due to the
following :

It has been seen in various cases in which the court allows the termination of Pregnancy of
the Mother on various reason ( main reason being Mental & Physical risk to either the child
or the mother ) . One important thing to note is that with advancement and improvement of
Medical Sciences the process of Abortion is now much simpler and involves less risk as
compared to what it was when the Medical Termination Of Pregnancy Act was passed . The
intention of court in recent cases where an appeal for termination of pregnancy has been filed
is to look forward to health hazard of the mother . There has been numerous cases in which
the court has given such decision

The International Campaign for Women’s Right to Safe Abortion, a network of more than
1,200 bodies worldwide working on safe abortion, also released a statement saying that third
trimester abortions in experienced hands “is at least as safe as delivery at term, and may be
safer.” They pointed to a body of literature and growing clinical experience of third trimester
abortions in the United States, suggesting that the procedures can be safely performed, even
for young girls. Though the medical community is still debating the ethics of late-term
abortions, it is important for India to have the discussion and for the government to draw up
clear guidelines for all unwanted pregnancies beyond 20 weeks. Cases cannot be left entirely
up to the discretion of doctors whose opinions may not be based on medicine alone.

In case of X v. Union of India11 the court gave the judgement that if the Petitioner wanted to
terminate her pregnancy of about 23-24 weeks and medical board was of the view that it can
endanger the life of the mother , termination of pregnancy under such situation should be
permitted in order to save the life of woman . The health endangered could be both due to
mental and physical health risk. Hence liberty was given to the petitioner to carry out
termination under article 21 of the Constitution Of India and Section 376 of The India Penal
Code 1860.

11
X v. Union of India (2016) 14 SCC 382

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In the case of Suparna Debnath & Anr v. The State of West Bengal , the High Court gave its
judgement on 19th February 2019 , overturned a single bench’s order to allow a 29month
pregnant woman to abort her foetus . The reason for the allowance in the case was that the
child was diagnosed with multiple congenital complication including Down syndrome and
the financial condition of the couple being considerable poor the court gave its order .12

Similar judgement was given by the court in case of Savita Sachin Patil & anr. Vs. Union of
India 13

One important point to bring into notice in these cases were that the court has been
emphasizing on the fact that it is essential for Termination in late term of pregnancy to save
the mental and physical health from endangering life rather than The process of Termination
of pregnancy endangering the life of woman . This brings us to the point where medical
advancement in terms of termination of pregnancy involves much less risk as compared to the
risk in carring the child upto its full term.

Thus it was unjust for ISK Fertility Clinic to reject the request of Akash & Tina on the
ground of Anjali’s health.

12
https://timesofindia.indiatimes.com/city/kolkata/hc-bench-allows-abortion-at-29-
wks/articleshow/68055681.cms visited on 9/3/19
13
(2017) 13 SCC 436

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IV. ARE THERE GUIDELINES PRESENTLY IN PLACE TO PROTECT AND

PROVIDE FOR A BABY BORN OF SURROGACY WHOSE PARENTS REFUE TO
TAKE CUSTODY OF SUCH BABY AFTER HIS OR HER BIRTH?

In India , Surrogacy in Commercial form is formally legalized with the Supreme Court
judgment of Baby Manji Yamanda Vs Union of India14 reiterated in Jan Balaz vs Anand
Municipality15.Subsequent to this judgement there has been a draft ART Bill which legalized
commercial surrogacy in India and other legal instruments.
Surrogacy is regulated in India under these legal instruments as following:

1.Indian Council of Medical Research (ICMR) Guidelines 2005,16

2.Assisted Reproductive Technology (Regulation) Bill 2010, Draft Bill awaiting

enforcement17
3.Law commission Report by Government of India Report No. 228, Need For Legislation to
Regulate Assisted Reproductive Technology Clinics As Well as Rights & Obligations of
Parties to Surrogacy” year 200918
4. Home Ministry Regulations on Surrogacy to FRRO – VISA, January 201319.

The surrogacy agreement is defined as a contract between the person(s) availing of assisted
reproductive technology and the surrogate mother. Thus the Surrogacy Agreement is entered
into between two parties namely the Intending couple and the Surrogate mother and the ART
or Fertility or IVF Clinic is not party to the surrogacy agreement.

14
Baby Manji Yamnda Vs Union of India & Anr., 2008(13 )SCALE 76 , 2008(11 )JT150, India Supreme
Court Judgment,
http://www.indiacourts.in/BABY-MANJI-YAMADA-Vs.-UNION-OF-INDIA—ANR._3bc98bbb-8224-442c-
90b9-7d1531137762 visited on 9/3/19
15
Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151 of 2009
, http://www.indiankanoon.org/doc/1459493/?type=print visited on 9/3/19
16
National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India , Indian Council of
Medical Research
http://icmr.nic.in/art/art_clinics.htm, visited on 9/3/19
17
Assisted Reproductive Technology (Regulation) Bill 2010, Ministry of Health & Family Welfare Government
of India , ART Bill
http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf visited on 9/3/19
18
Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations
of Parties to Surrogacy, “, Law Commission , Government of India , Report No. 228. August 2009
. http://lawcommissionofindia.nic.in/reports/report228.pdf visited on 9/3/19
19
General Instructions for Registration by the Foreigners, B. – Surrogacy Cases , Ministry of Home Affairs
http://mha.nic.in/pdfs/ForeigD-FRRO_version223.6.11.pdf visited on 9/3/19

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In India, the ART Bill under its relevant provides that “both the couple or individual seeking
surrogacy through the use of assisted reproductive technology and the surrogate mother, shall
enter into a surrogacy agreement which shall be legally enforceable and gives legal binding
effect to surrogacy agreement. It is under this surrogacy agreement that monetary
compensation for the surrogate mother may be provided for agreeing to act as such surrogate.
Thus in the absence of binding law or till the law comes into effect the surrogacy
arrangement is governed by the terms and conditions of the surrogacy contract.
But there are certain limitations in the surrogacy agreement as well. One of the prime critic
of surrogacy agreement is it is agreements may be legally enforceable and binding only
within the geographical boundary of India or territorial limits of India only and not beyond or
outside India, thus the surrogacy agreement made within India may not be legally valid or
binding in foreign country rather such agreement may have no legal effect rendered void and
unenforceable

Thus in the absence of binding law or till the law comes into effect the surrogacy
arrangement is governed by the terms and conditions of the surrogacy contract entered into
by the parties namely the intending couple and the surrogate mother and the same would
regulate the surrogacy arrangement.

The Indian Law makes it mandatory for the intended parents to take the responsibility of the
child thus born, and till now there have been no cases witnessed where the intended parents
have refused to take their child & this status necessarily emanates from the view that why
would a couple not accept the child for whom they have borne so much of pain. Even if in
case the Intended Parents refuse to take the responsibility of child then their refusal can be
challenged in the court on the basis of the surrogacy contract signed by them. Also the
surrogate mother and the state shall in no way be responsible to take the responsibility of
child. The ICMR Guidelines which at present are the governing guidelines for assisted
reproductive technologies make no specific provision for this however the new proposed
Assisted Reproductive Technology Act 2008 under Sec 34(11) makes it mandatory for the
intended parents to accept the child irrespective of any abnormality and a refusal to do so
would constitute an offence

A report filed by Ministry of Women & Child Development gives us statistics in respect of
Surrogacy carried out in presence of a Contract which is as follows:

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“Since the most crucial aspect of the whole surrogacy arrangements lies on the birthing
arrangements for which the entire efforts takes place as it includes the agreement of
Commissioning parents with the clinic/doctor/agency, the agreement with the surrogate
mother to relinquish the child, the monetary compensation for the surrogate mother, the
health check-up to ascertain the well-being of the fetus, etc. The present section deals with
these crucial details as revealed during field study of Delhi and Mumbai. The majority of
surrogate mothers (80% of respondents in Delhi and 96% of respondents in Mumbai)
stated that surrogacy agreement between all the involved parties takes place in the form of
a written contract. The remaining respondents were found to be waiting for the contract to
be signed by both the parties (the surrogate mother and the commissioning parents) as the
clinics/doctors normally prefer to prepare and sign the agreement when the pregnancy is
confirmed by the end of the first trimester till the middle of the 4th – 5 th months of
pregnancy. Further, they (the clinics/agencies/doctors) prepare the document and
inform/request the commissioning parents to come to India to sign the document. More
than 85% of the contracts were found to be signed around the second trimester of the
pregnancy as it takes one to two months more for the commissioning parents to arrange
their visit to India after being informed about the confirmation of pregnancy of the
surrogate mother by the clinic/infertility physician. In some clinics/agencies, the contract is
first signed by the surrogate mother and her husband and then sent either by e-mail or post
to the Commissioning parents to be signed by them and sent a copy back to the
clinic/doctor/agency dealing with the surrogacy arrangement. The nature of contract, for
most of the surrogate mothers is a bonded paper on which the agreement would take place
(70% of respondents in Delhi and 72% of respondents in Mumbai). 14% of respondents in
Delhi and 10% of respondents in Mumbai said that the contract was signed on the paper
prepared by the agents. Often, the surrogate mother is unable to read or write, hence, she
and her husband are told about the contract by the hospital/clinic authorities in suitable
language and terms, which the surrogate mother cannot verify by any means. She has to
sign the agreement as she is already 4 months pregnant and being poor has great financial
expectations exaggerated by the hospital/clinic authorities/doctors. The surrogate mothers
are completely been ‘brain-washed’ that they would be getting huge sum of money at the
end of the road. In such a way, there is a need of legal provisions relating to surrogacy
arrangements. It should be mentioned that due to the absence of such a law the surrogate
mother suffers most as she is exploited not only physically, but also emotionally. The
research findings revealed that the majority of the surrogate mothers have not received any

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copy of the contract. The clinics did not leave a copy of the agreement with the surrogate
mother, who is a signing party in the agreement, to have any evidence either of her
pregnancy or the surrogacy arrangement. Out of total respondents, 92% of respondents in
Delhi and 60% of respondents in Mumbai said that did not have a copy of this contract.
Surprisingly, only two surrogate mothers in Mumbai stated that they got a copy of the
contract. Out of total respondents 88% of respondents in Delhi and 76% of respondents in
Mumbai stated that they are not aware about the clauses of the contract. 20% of
respondents in Mumbai and 4% of respondents in Delhi said that they are fully aware with
the clauses of the contract. However, when the research team questioned the respondent
surrogate mothers about certain clauses of the agreement, they could not answer. On cross
reference to this the agencies/hospital/clinic authorities, responsible to give the
information to the surrogate mothers, stated that the expectant surrogate mothers could
not have ‘remembered’ the clauses orally explained to them during counseling procedure
as they are semi-literate and might have ‘forgotten’ what had been ‘told’ to them during
the process of signing the agreement. First of all, it leaves a wide scope for avoiding any
unpleasant thing to be told to the surrogate mother by the
agencies/hospitals/clinics/doctors which in future could be used against her interest.
Secondly, since the surrogate mother is already four- five months pregnant at the time of
signing of contract, she has no option left other than to sign the contract and agree to what
has been orally ‘explained’ to her by the hospitals/clinics/doctors. Since the surrogate
mother is the most vulnerable one among all parties involved, she neither has bargaining
capacity nor the power to withdraw in case the arrangement goes against her interest.”20

At present there are no such concrete laws to protect and provide for a baby born out of
surrogacy whose parents refuse to take custody of such baby after birth , the only method it
can be enforced can be by means of surrogacy contracts or orders of the court.

20
Report on Surrogate Motherhood- Ethical or commercial conducted by Ministry of Women & Child
Development.
http://www.wcd.nic.in/sites/default/files/final%20report.pdf visited on 10/3/19.

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS

THAT THE

HON’BLE SUPREME COURT BE PLEASED:

1. To declare that Anjali Menon, ISK fertility clinic and Bluebell Hospital do not have the
locus to file this petition.

2. To declare that Akash and Tina were justified in requesting termination of pregnancy in
the eighth month on the grounds of their divorce.

3. To declare that ISK fertility is not justified in rejecting Akash and Tina’s request

on the ground of Anjali’s health being possibly at risk.

4. To frame guidelines to protect and ensure that no babies born of surrogacy shall be

neglected and establish such strict laws against those parents who refuse to take custody of

such baby after his or her birth.

5. To declare that the child should be under the custody of surrogate mother or ISK
Fertility Clinic in case the divorce despite them filing for divorce mutually.

6.To frames proper regulative methods for speedy decision making in matters of
Termination of Pregnancy.

7.To makes clear the methods by which Surrogacy should be carried out and build a body
specifically for vigilance in these matters.

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AND/OR

PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE

INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE RESPONDENT AS IN DUTY BOUND

SHALL EVER PRAY.

MEMORIAL ON BEHALF OF THE RESPONDENT