LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph

& And

A.I.R. All India Reporter

Anr. Another

Bom Bombay

Ed. Edition

HC High Court

SC Supreme Court

ILR Indian Law Reporter

No. Number

Ors. Others

Sec. Section

S.C.C. Supreme Court Cases

Supp. Supplementary

S.C.R. Supreme Court Reporter

v. Versus

Vol. Volume

u/s Under Section

 i.e., That is

Govt. Government

I.LR Indian Law Review

U.O. I Union of India

P&H Punjab and Haryana

Pg Page

Crim.LR Criminal Law Reporter

ART Assisted Reproductive Technology

PIO Public Information Officer

RTI Right To Information

 INDEX OF AUTHORITIES

A. CASES

1. Namit Sharma v. Union of India, (2013) 1 S.C.C.745 (India).

2. Om Prakash v. State, 1955 All 275, 282 (India).
3. Western U.P Electric Power & Supply Co. Ltd v. State of U.P, 1969 1 S.C.C 817
4. Vijay Lakshmi v. Punjab University, 2003 8 S.C.C.440 (India).
5. R.D. Shetty v. International Airport Authority ,19 (1979) 3 S.C.C. 489 (India)
6. Sharma Transport v. Government of A.P ,20 (2002) 2 S.C.C. 188 (India)
7. Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248(India).
8. Kartar Singh v. State of Punjab, (1994) 3 S.C.C.569(India).
9. A.K.Gopalan v. State of Madras, AIR 1950 SC 27(India)

10. Maneka Gandhi v. Union of India (1978) 1 S.C.C. 248(India).

11. M. Nagaraj v. Union of India, (2006) 8 S.C.C 212(India).
12. Kharak Singh v. State of U.P, A.I.R. 1963 S.C. 1205(India).
13. State of Madhya Pradesh v. Shobharam and Ors, A.I.R. 1966 S.C. 675(India).
14. Gupta v. Union of India, 2001 (3) KLT SN 122
15. John W Macdonald, Classification of Crimes, 18 Cornell L. Rev 524(1933)

16. Nagaland Senior Govt. Employees Welfare Ass. v. State of Nagaland, (2010) 7SCC 64
17. State of Bombay v. Balsara, (1951) SCR 682

18. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors, 1981 A.I.R.
746.
19. Bishan Das v. State of Punjab, A.I.R. 1961 SC 1570;
20. Kartar Singh v. State of U.P. A.I.R. 1963 SC 1205.
21. State of Madhya Pradesh v. Shobharam and Ors, W.P No. 243/ 1954 (1966)
22. Puttuswamy v. Union of India(2017) 10 SCC 1)
23. Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
24. STATUTES

1) THE INDIAN CONSTITUTION, 1950

2) THE INDIAN PENAL CODE, 1860
3) CODE OF CRIMINAL PROCEDUE, 1973
4) SURROGACY (REGULATION) ACT 2021
5) THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGIULATION) ACT 2021
6) THE RIGHT TO INFORMATION ACT, 2005

25. INTERNATIONAL STATUTES

1) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

2) UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

26. ARTICLES AND REPORTS

1) PERSONAL INFORMATION OF PUBLIC SERVANT AND RIGHT TO
INFORMATION ACT, https://www.legalserviceindia.com/legal/article-3351-personal-
information-of-public-servant-and-right-to-information

2) SURROGACY REGULATIONS IN INDIA,

https://www.mondaq.com/india/constitutional-administrative-law/1126150/surrogacy-
regulations-in-india

3) SURROGACY LAWS IN INDIA ,

https://blog.ipleaders.in/surrogacy-laws-india/

4) SURROGACY BILL TO BENEFIT WIDOWS AND DIVORCEES

https://timesofindia.indiatimes.com/india/surrogacy-bill-to-benefit-widows-divorcees-
too/articleshow/
5) SURROGACY BIOMARKETS IN INDIA: TROUBLING STORIES FROM BEFORE
THE 2021 ACT
https://www.theindiaforum.in/article/surrogacy-biomarkets-india-troubling-stories-2021-
act

6) RTI ACT AND CONSTITUTION OF INDIA: AN ANALYSIS

https://www.legalserviceindia.com/legal/article-5023-rti-act-and-constitution-of-india-an-
analysis.html

7) RIGHT TO INFORMATION IN CONSONANCE WITH RIGHT TO PRIVACY

https://cic.gov.in/sites/default/files/Internship

8) Subhodh Asthana, Article 15 of the Constitution, Prohibition of discrimination and

unreasonable differentiation, http://www.blogipleaders.in

9) BOOKS

1. Mahendra Pal Singh, M.N. Shukla’s Constitution of India, EBC Publication,13th

edition,2017
2. M. Gabriela Torres, Marital Rape, 2nd edition, Oxford Publication, 2010
3. Dr Mrs. Mamta Rao, Constitutional law, Eastern Book Company, Lucknow, 4 th Ed., 2013
4. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd edition, LexisNexis, 2010
5. M P Jain, M P JAIN Indian Constitutional law, Lexis Nexis, 8th Ed. 2010
6. P M Bakshi, The Constitution of India, Allahabad Law Agency, 3rd edition,2007
7. D.D. Basu, D.D. Basu’s Commentary on ‘the Constitution of India’, vol 1,2,3,7, Lexis
Nexis, 8th ed. 2009.
8. H.M. Seervai, Constitutional Law of India, vol.1, Universal Book Traders, vol
3,4thed.2002.
9. V.N. Shukla’s, Constitution of India, 11th ed. Eastern Book Company
10. T.K. Tope’s, Constitutional Law of India, 3rd ed, Eastern Book Company
11. Rekha Pahuja, Surrogacy Law Practice and policy in India, 2021
12. N. V Paranjape, right to information Law in India, Lexis Nexis, 2014
13. LEXICONS

1. Henry Campbell Black, Black’s Law Dictionary, (9th Ed. 2010)

2. RamanathaIyer, Advanced Law Lexicon, 2391(3rd Ed.2005)
3. The Oxford Dictionary, 2nd Ed.p.433)
4. Collina Cobuild English Language Dictionary

14. DATABASES AND WEBSITES

1. http://www.latestlaws.com
2. http:// www.legalserviceindia.com
3. http://www.westlawindia.com
4. http://www.vakilno1.com
5. http://www.manupatra.com
6. http://www.heionline.com
7. http://www.S.C.C.online.com
8. http://www.lexisnexis.com/in/legal
9. http://www.allaw.com
10. http://www.lexology.com
11. http://www.lawfirms.com
12. http://www.scribd.com
13. http://www.indiankoon.org
 ISSUE

WHETHER UNDER THE CIRCUMSTANCES OF CONTRACT SIGNED BY

SURROGATE MOTHER, TO HAND OVER THE CHILD IMMEDIATELY AND NOT TO
CLAIM ANY RIGHT AFTERWARDS HAS A RIGHT WITH HIM?
 ARGUMENTS ADVANCED

1. UNDER THE CIRCUMSTANCES OF CONTRACT SIGNED BY SURROGATE

MOTHER, TO HAND OVER THE CHILD IMMEDIATELY AND NOT TO CLAIM
ANY RIGHTS AFTERWARDS HAS NO RIGHT WITH HIM

1.1 A Surrogate mother cannot decide to keep the baby in Indiva

1) In India, the surrogate is not considered as the legal mother. As per ICMR Guidelines 2005,
a surrogate mother cannot be genetically related to the child . She is legally and
psychologically counselled that she will not be having any rights over the child. Her rights
and obligations towards the intended parents as well the child are formulated in the
gestational surrogacy agreement. Moreover, a child born through surrogacy shall be
presumed to be the legitimate child of the intended parents/s and shall have all the legal
rights to parental support, inheritance and all other privileges which a child born naturally
to the intended parents/s would have had. As per the Indian Council of Medical Research
(ICMR Guidelines) the surrogate mother should not be biologically connected to the child
(Guideline 1.2.33).
2) The Indian Law recognises the Intended mother only as the legal mother in surrogacy
arrangements. Also Guidelines 3.10.1 and 3.16.1 make it very much clear that the intended
parents only would be the legal parents of the child with all the attendance rights, parental
responsibility etc. Also Guideline 3.5.4 states that the surrogate mother shall not be the
legal mother and the birth certificate shall be in the name of the genetic parents. 3.5.5
Provides that the surrogate mother shall relinquish in writing all the parental rights over the
child. India is very soon going to enact its legislation on the field of Assisted Reproductive
Technology. The Proposed act also has the same favourable provisions1. Hence, A
surrogate mother cannot decide to keep the baby in Indiva.
3) It is contended that in the instant case, 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:- The parties to the contract would never disclose the fact of

1
Indian Council of Medical Research (ICMR Guidelines, (Guideline 1.2.33)).
 commercial surrogacy to a third person. 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. After the birth of the child, the child would be immediately handed over
to the custody of Devika. After the birth of the child, Kusum i.e. ‘Surrogate Mother’ would
cease to have any relation with the child2.

1.1.1 Reasonableness Test under Article 14

4) To raise the plea of Article 14 of the Indivan Constitution, the element of discrimination
and arbitrations has to be brought out in clear terms3. Article 14 guarantees similar
treatment and not identical treatment4. In Western U.P Electric Power & Supply Co. Ltd
v. State of U. P5, the Supreme Court held thus:
“Article 14 of the Constitution ensures equality among equals: its aim is to protect persons
similarly placed against discriminatory treatment. It does not however operate against
rational classification. A person setting up a grievance of denial of equal treatment by law
must establish that between people similarly circumstanced, some were treated to their
prejudice and differential treatment had no reasonable relation to the object sought to be
achieved by law”
5) In R.D. Shetty v. International Airport Authority6, Bhagwati J held that: “The principle of
reasonableness and rationality which is legally as well as philosophically an essential
element of equality or non-arbitrariness is protected by Article 14 and it must characterise
every State action, whether it be under authority of law or in exercise of executive power
without making of law.” More recently, Pasayat J in Sharma Transport v. Government of
A. P7. has observed as follows: The expression “arbitrarily” means: in an unreasonable
manner, as fixed or done capriciously or at pleasure, without adequate determining

2
Moot Proposition Para 8
3
Namit Sharma v. Union of India, (2013) 1 S.C.C.745 (India).
4
Om Prakash v. State, 1955 All 275, 282 (India).
5
Western U.P Electric Power & Supply Co. Ltd v. State of U.P, 1969 1 S.C.C 817 (India); Reiterated in Vijay
Lakshmi v. Punjab University, 2003 8 S.C.C.440 (India).
6
R.D. Shetty v. International Airport Authority ,19 (1979) 3 S.C.C. 489 (India)
7
Sharma Transport v. Government of A.P ,20 (2002) 2 S.C.C. 188 (India)
 principle, not founded in the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone.
6) While considering the factual matrix of the case, it is stated that there is reasonable
classification over the contract and the person have no right over that surrogate child. There
is no violation of Art. 14 as art. 14 states that alike peoples should be treated alike and here
that is what the Court done.

1.1.2 There is no violation of Right to life, personal liberty and privacy under Article 21

7) Both Surrogacy Regulation Act 2021 and Assisted Reproductive Technology (Regulation
Act, 2021 have been enacted after following due prescribed procedure as per law. It is now
established after Maneka Gandhi’s case8 that ‘procedure’ for purposes of Article 21 has to
be reasonable, fair and just.
8) The Supreme Court has asserted in Kartar Singh v. State pf Punjab9that the procedure
contemplated by Article 21 is that it must be “right, just and fair” and not arbitrary, fanciful
or oppressive. In order that the procedure be right, just and fair, it must confirm to natural
justice. Accordingly, it required, firstly, existence of an enacted law authorizing
interference with the life pr personal liberty, secondly, the law should be valid, and thirdly,
the procedure laid down by the law must be followed. 10.
9) The expression ‘procedure established by law’ extends to both substantive and procedural
due process11. It was held in Maneka Gandhi v. Union of India12 that the procedure
contemplated by Article 21 must answer the test of reasonableness and should also be in
conformity with the principles of natural justice.13
10) Where individual liberty comes into conflict with an interest of the security of this state or
public order, the liberty of the individual must give way to the larger interest of the nation14,
Liberty of an individual has to be balanced with his duties and obligations towards his
fellow citizens. State of Madhya Pradesh v. Shobharam and Ors15, the Court held that no

8
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248(India).
9
Kartar Singh v. State of Punjab, (1994) 3 S.C.C.569(India).
10
A.K.Gopalan v. State of Madras, AIR 1950 SC 27(India).; Bishan Das v. State of Punjab, A.I.R. 1961 S.C.
1570(India).; Kharak Singh v. State of U.P, A.I.R. 1963 S.C. 1205(India).
11
Maneka Gandhi v. Union of India (1978) 1 S.C.C. 248(India).
12
Ibid.
13
Ibid; M. Nagaraj v. Union of India, (2006) 8 S.C.C 212(India).
14
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27(India).; Bishan Das v. State of Punjab, A.I.R. 1961 S.C
1570(India).; Kharak Singh v. State of U.P, A.I.R. 1963 S.C. 1205(India).
15
State of Madhya Pradesh v. Shobharam and Ors, A.I.R. 1966 S.C. 675(India).
 authority in India (Legislative, executive, judicial) can deprive a person of his life or
personal liberty unless it can justify its action under a procedure established by law. Hence,
in the instant case, the sociological and background of Surrogacy have to be taken into
consideration, there is no violation of Article 21 as the procedure established by law
regarding Surrogacy Regulation Act, 2021 is constitutional and valid. It is just, fair and
reasonable.
11) The irony is that, although purportedly embracing modernity, this legislation maintains the
conventional taboo against childbirth without marriage. A woman is not allowed to use
surrogacy services in case she wants to have the child but is not able to bear it due to many
reasons. Not only is the term couple been used only for a married couple of the legal
marriage ages but leaves out any man and woman who are in a live-in relationship to avail
of this service. This promotes the institution of marriage.
12) Likewise, in the instant case, it is humbly contended that 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.
1.2 CLASSIFICATION NEED NOT BE BASED ON ABSOLUTE SCIENTIFIC
CRITERIA AND HENCE THE CLASSIFICATION IS SOUND
13) In case of classification, it is not necessary for there to exist an absolute scientific
classification. The Supreme Court has upheld this in Gupta v. Union of India16. Legal
scientists hold that in order to make a valid classification the purpose of classification must
be related to the purpose of enactment17. That is, if the purpose of classification can be
linked to the purpose of enactment, then the term ' scientific ' can be applied. Thus, the
argument that the said act lacks scientific basis is not maintainable.
14) Hence, in the instant case also, the classification here does not have any scientific criteria,
and therefore, the classification seems to be sound.
1.3 EXISTENCE AS TO THE PRESUMPTION OF CONSTITUTIONALITY OF A
STATUTE.
15) The presumption is always in favour of the constitutionality of an enactment and the burden
is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles18. The assumption is that the legislature understands and correctly

16
Gupta v. Union of India, 2001 (3) KLT SN 122
17
John W Macdonald, Classification of Crimes, 18 Cornell L. Rev 524(1933)
18
Nagaland Senior Govt. Employees Welfare Ass. v. State of Nagaland, (2010) 7SCC 64
 appreciates the needs of its own people that its laws are directed to problems made manifest
by experience and are based on adequate grounds19. Therefore, it is contended that the
Surrogacy Regulation Act, 2021 and Artificial Reproductive Technology by the legislature
is one that have been made after understanding and appreciating the value of social norms
and regarding the institution of marriage and family.
16) It is humbly submitted before this honourable Court that in the present case, there is no
violation in relation with the procedure established by law. No person shall be deprived of
his life or personal liberty except according to procedure established by law and such
procedure shall be reasonable, fair and just20. The Supreme Court has asserted in Kartar
Singh v. State of Punjab21 that the procedure contemplated by Art 21 is that it must be
“right, just and fair” and not arbitrary, fanciful or oppressive. the law should be valid, and
thirdly the procedure laid down by the law must be followed22 . State of Madhya Pradesh
v. Shobharam and Ors23 the Court held that no authority in Indiva (Legislative, executive,
judicial) can deprive a person of his life or personal liberty unless it can justify its action
under a procedure established by law.
17) In the instant case, the procedure established by law is not arbitrary. The restrictions which
has been imposed is reasonable and hence Here, the due process has been fulfilled by the
legislature in passing the act and also the personal liberty of people is not violated through
this act. Hence the procedure established by law is not arbitrary
1.3.1 The right to reproductive autonomy is not violated in the instant case
18) It is humbly submitted before this Honourable Court that the Right to reproductive
autonomy is not violated in the instant case. The Puttaswamy case24 specifically recognised
the constitutional right of women to make reproductive choices, as a part of personal liberty
under Article 21 of the Indivan Constitution. The bench also reiterated the position adopted
by a three-judge bench in Suchita Srivastava v. Chandigarh Administration25, which held
that reproductive rights include a woman's entitlement to carry a pregnancy to its full term,
to give birth, and to subsequently raise children; and that these rights form part of a woman's

19
State of Bombay v. Balsara, (1951) SCR 682
20
Maneka Gandhi v. Union of India, (1979) 1 S.C.C. 248.; See also, Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi & Ors, 1981 A.I.R. 746.
21
Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569.
22
A.K. Gopalan v. State of Madras, A.I.R. 1950 SC 27; Bishan Das v. State of Punjab, A.I.R. 1961 SC 1570;
Kartar Singh v. State of U.P. A.I.R. 1963 SC 1205.
23
State of Madhya Pradesh v. Shobharam and Ors, W.P No. 243/ 1954 (1966)
24
Puttuswamy v. Union of India(2017) 10 SCC 1)
25
Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
 right to privacy, dignity, and bodily integrity. In none of the cases it has been held that
surrogacy comes under the ambit of reproductive autonomy. Therefore in the instant case,
there is no violation of the right to reproductive autonomy under article 21 of the
constitution.
19) Hence, it is humbly contended that the right of reproductive choice of Kusum is not
challenged here, but the contract itself is valid. 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. 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:- The parties to the contract
would never disclose the fact of commercial surrogacy to a third person. 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. After the birth of the child, the child
would be immediately handed over to the custody of Devika. After the birth of the child,
Kusum i.e. ‘Surrogate Mother’ would cease to have any relation with the child.
 PRAYER

In the lights of issues raised, arguments advanced and authorities cited, it is most humbly

submitted that the court may please adjudge and declare that:

1. Under the circumstances of contract signed by surrogate mother, to hand over the child

immediately and not to claim any right afterwards, has no right with him.

AND/0R

Pass any other order, writ or directions that deems fit in the interest of justice, equity

and good faith.

Place:

Date:

Respectfully submitted on behalf of the Respondent

SD/-