Paternity, Surrogacy and Protection of

Child

Bidhan Poudyal
BA LLB 4th SEMESTER
Prithivi Narayan Campus
 Paternity

"Paternity" refers to the legal establishment of who is the father of a child. While the
identity of a child's biological mother is usually by nature easy to establish, the father's
identity may in some cases be uncertain. Paternity issues often arise in cases involving
child support, but they can also be important in relation to adoption, inheritance, custody,
visitation, and health care.

Paternity law refers to body of law underlying legal relationship between a father and his
biological or adopted children and deals with the rights and obligations of both the father
and the child to each other as well as to others.

Previously, in the absence of DNA testing, the views of the mother regarding the father
were considered to establish paternity, so much so as claiming that “only a mother knows
who the father of her child is”.

But with the advent of DNA testing, it is taken as a safe and scientific method for
establishing disputed paternity cases. The recent example is Devi Gurung vs. Nita
Gurung case (Decision No. 8578) where the Court has established that, in paternity
disputes, DNA tests play a vital role.
 Legal provision under Nepalese law

The Civil code in its chapter 4 of family law (part 3) deals with the
Relationship between Mother, Father and Son, Daughter.

SECTION: 105
Maternity or paternity to be determined from mother or father :
Determination of maternity or paternity shall be done on the basis of their Mother or
Father and that in determining paternity unless otherwise proved, the father of the child
shall be considered to be the mother’s husband at the time of birth of such child.

SECTION: 106
Child’s birth presumed to be from husband : presumption of birth from the married
husband (unless otherwise proved), if:
 The child is born within 180 days from the date of marriage

 The child is born within 272 days from the date of death of the husband or dissolution
of marriage.
SECTION:107
Paternity may be denied : except agreed by husband and wife, if a child is born from
the wife before 180 days of marriage, the husband or the heir of the husband in case of
his death before the child’s birth, may deny paternity to such child.

if the husband married the wife having knowledge of the wife’s pregnancy before
marriage or having reasons to know of such pregnancy, he cannot deny paternity
solely for the reason of birth of child before stipulated duration.

SECTION:108
Son, Daughter or Paternity to be claimed : a child, whose maternity or paternity is not
known, to be their son or daughter, it has to be done within two years from the date of
birth of such child or date of knowledge of such identity.

However, such claim may not be brought after the death of the child in
question.
SECTION:109
The paternity of the child born through artificial insemination to be of the father’s : a child
born through the sperm of another man through artificial insemination methods, with the
consent of the husband and wife, shall be considered to be born from the husband himself
and the paternity shall be determined on the same basis.

SECTION:110
Decision by the Court : in case of dispute regarding maternity or paternity, the decision
shall be by the Court.
SECTION111
Obtain name and surname :
 name and surname shall be from the father or mother as per their own religion, culture,
customs and traditions.

 If the father or mother are not immediately present or there is no probability of them
being readily present, the child will get the name from the guardian or the Mathawar
(protector).

 Anyone after birth can use the surname agreed upon by their father mother or if such
consensus is not reached then, the surname of the father afterwards their name. but if
paternity is undecided than the child can use mother’s surname.
 a person may use the surname of their father or mother or both as per their wishes.

 If questions arise as to the surname of any person, then unless otherwise proved, it
shall be presumed that they have used their father’s surname.

 If a person whose father or mother both are not found or known, may use the
surname provided by the Guardian.
 SECTION:112
Right to mention name : Right to mention names of Mother, Father, Grand-father or
Grandmother in any official works, legal proceedings or Deeds

However, if the father is not known then the person may write the name of his/her mother
and maternal grandfather, grandmother. If the name of the mother is also not known then
disclosing that fact, s/he may write the name of their guardian or Mathawar if they are
infants and their names only if they are adults.

SECTION:114
Obligation to care and maintain : The mother and father must jointly care and maintain
their every minor and must provide for maintenance, health care, education, sports and
entertainment and other necessary arrangements, according to their financial condition and
capability.

SECTION:118
Obligation to care and maintain : The mother and father must jointly care and maintain
their every minor and must provide for maintenance, health care, education, sports and
entertainment and other necessary arrangements, according to their financial condition
and capability.
Limitation : A person aggrieved from any act done or action taken may make a lawsuit
within the specific statute of limitation, if any, provided and within six months after the date
on which such an act was done or action taken, in the other circumstances.
 SURROGACY

Surrogacy is the practice in which a woman agrees to become pregnant with the intention of
permanently surrendering the child born of that pregnancy to another person or couple, with
the intent that the person or couple will parent the child.

A type of pregnancy in which a woman carries and gives birth to a baby for a person
who is not able to have children. In a surrogate pregnancy, eggs from the woman who will
carry the baby or from an egg donor are fertilized with sperm from a sperm donor to make an
embryo.

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman (the

surrogate mother) agrees to bear a child for another person or persons, who will become the
child's parent(s) after birth.

Surrogacy is a fertility treatment in which a woman carries and delivers a pregnancy for
another couple. This woman, the surrogate mother, may be the child’s genetic mother (as in
the case of traditional surrogacy) or she may be genetically unrelated to the child (called
gestational surrogacy).
Surrogacy method is adopted mainly by the people of following backgrounds:

 Heterosexual women who do not wish to carry a child by choice, or who are unable
to carry a child due to a range of factors (for example, infertility; hysterectomy;
disease (such as cancer); absent or poorly functioning ovaries or uterus; recurrent
pregnancy loss; repeated failures using other forms of assisted reproduction; age);

 Single women or lesbian couples who can not or do not wish to use artificial
insemination or other forms of assisted reproduction to become pregnant, or do not
wish to carry a pregnancy;

 Single or same-sex partnered men.

 Types of surrogacy

Traditional Surrogacy: A surrogacy arrangement where the surrogate mother is

directly impregnated by the Intended Father

Gestational Surrogacy: A surrogacy arrangement in which the embryo is conceived

through in-vitro fertilization and then transplanted into a surrogate mother.

Altruistic Surrogacy: A surrogacy agreement where no party benefits financially.

For example, in altruistic surrogacy agreements the surrogate is not compensated
more than her own out-of-pocket expenses during the pregnancy.

Commercial surrogacy: A surrogacy agreement in which one or more parties may

benefit financially. For example, commercial surrogacy agreements often include
significant compensation for the surrogate (Pushpa Raj Pandey v office of Prime
Minister and Others. )
ननवेदक : कञ्चनपुर नजल्ला, सुडा गा.नव.स., वडा नं. ६ स्थायी घर भई हाल काठमाड ं नजल्ला,
काठमाड ं महानगरपानलका वडा नं. ३२ अनामनगर बस्ने अनधवक्ता पुष्पराज पाण्डे य
नवरूद्ध
नवपक्षी : नेपाल सरकार, प्रधानमन्त्री तथा मन्त्रन्त्रपररषद् को कायाा लय, नसंहदरबार, काठमाड स
ं मेत
भाग: ५९ साल: २०७४ मनहना: जेष्ठ अंक: २
आदे श नमनत : २०७३।०३।३०
ननर्ाय नं. ९७५७

सरोगे सी प्रनवनधबाट मनहलामा हुनसक्ने शारीररक र माननसक हाननको कुनै नवचारै नगरी कोख
भाडामा नदने र बच्चा जन्माई उपलब्ध गरे गराएबापत रकम लेनदे न गने व्यावसानयक सरोगे सीलाई
नबना कानूनी व्यवस्था प्रयोगमा आउन नदनु समाजको लानग घातक मात्र नभएर मनहलाहरूको
शोषर्जन्य कायाको प्रोत्साहनसमेत हुन जाने हुन्छ । कुनै नारी नववाहपूवा गभा वती हुुँ दा कलंकको
लाञ्छना लगाइने समाजमा नबना कानूनी व्यवस्था एवं कानूनबमोनजमको ननयमनकारी ननकायको
अनुमनत नबना सरोगे सी सेवाको प्रनवनध व्यवहारमा लागू गनालाई छु ट प्रदान गना ननमल्ने ।
सरोगे सीसम्बन्धी सेवा वा व्यवसाय नवधानयका नननमात कानूनबाट मात्र व्यवन्त्रस्थत गररनु पने जन
स्वास्थ्य, नशष्टाचार वा नैनतकताको नवषय हो । सरोगे सी आमा, ती आमाबाट जन्मने बच्चा र सरोगे सी
आमाबाट सन्तान प्राप्त गना चाहने जैनवक आमा बाबुको हक अनधकारका नवषयहरूलाई सम्बोधन
गने कानूनी व्यवस्थाको शून्यतामा सरोगे सी सेवा सञ्चालनसम्बन्धी व्यवसाय सञ्चालन गनुा वा गना नदनु
सावाजननक नीनत एवं सावाजननक नहतनवपरीत हुन जाने हुन्छ । सरोगे सी आमाबाट सन्तान जन्माई
ग्रहर् गना पाउने वा त्यस्तो पेसा वा व्यवसाय सञ्चालन गना पाउने कुरा संनवधान प्रदत्त हकको नवषय
होइन । सरोगे सीबाट सन्तान प्रान्त्रप्त गने गराउने व्यवसाय सञ्चालनको नवषय संनवधानले पररकल्पना
नगरे को अवस्थामा यसलाई अनधकारको रूपमा मान्न पनन ननमल्ने ।

परोपकारको दृनष्टकोर्बाट कुनै रकम कलम ननलई स्वयम् सरोगे ट हुन चाहने कुनै मनहलाको
परोपकारी ईच्छालाई पनन कानूनी व्यवस्था नबना वैधता प्रदान हुन सक्दै न ।
मनहलाको मातृत्व र कोख जस्तो अपनत्व भएको कुरा भाडामा लगाएर वा सोसम्बन्धी व्यवसाय
सञ्चालन गरे र आनथा क उपाजान गना प्रेररत गनुा वा हुनु नैनतक दृनष्टले पनन सुहाउुँ दो नमाननने ।

सरोगे सी सेवा सञ्चालनका सम्बन्धमा अन्तरनननहत हुने कानूनी एवं ननयमनकारी संस्थागत संरचनाको
सुनननितताको आवश्यकतालाई उपेक्षा गरी यस्तो गम्भीर मानवीय, एवं सावाजननक स्वास्थ्य,
नशष्टाचार वा नैनतकता र मनहलाको भावना र संवेदनशीलता गाुँ नसएको नवषयमा नबना कानूनी
व्यवस्था कुनै पनन नकनसमको Surrogacy सेवा सञ्चालन गनुा वा गराउनु उनचत नहुने ।
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central
questions:
 Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference
whether the surrogate mother is paid (commercial) or simply reimbursed for expenses
(altruistic)?

 What, if any, difference does it make whether the surrogacy is traditional or gestational
surrogacy?

 What will be the legal status of the child to the surrogate mother and the intended parents?

Different jurisdictions have different views regarding surrogacy.

Nepal: No explicit laws relating to Surrogacy in Nepal. Surrogacy was halted by the
Nepal Supreme Court in the Pushpa Raj Pandey v office of Prime Minister and Others
held that surrogacy is against public policy and without explicit legal provisions to
govern the aspects of surrogacy, it cannot be permitted.
India: As of November 4, 2015 commercial surrogacy is not legal in India. Before
2015, commercial surrogacy was legal in India. India was a destination for
surrogacy-related fertility tourism because of the relatively low cost.
Including the costs of flight tickets, medical procedures, and hotels, it was roughly a
third of the price compared with going through the procedure in the UK. In the case
of Jan Balaz v. Union of India, the Honorable Supreme Court of India has given
the verdict that the citizenship of the child born through this process will have the
citizenship of its surrogate mother. Surrogacy was regulated by the Indian Council
of Medical Research guidelines, 2005.
 PROTECTION OF CHILD

In cases of divorce, the court determines child custody arrangements. Under the common
statutory provision, if the spouses have children together while married, the parents have
joint guardianship over that child and the parental rights are equal. Each parent has an equal
right to the custody of the child when they separate.

When determining the home in which to place the child, the court strives to reach a decision
in "the best interests of the child."

A decision in "the best interests of the child" requires considering the wishes of the child's
parents, the wishes of the child, and the child's relationship with each of the parents, siblings,
other persons who may substantially impact the child's best interests, the child's comfort in
his home, school, and community, and the mental and physical health of the involved
individuals.
The Constitution of Nepal, Article 51 (ya) (5): best interest of the child shall be given
priority. Article 43, State shall ensure right to social security to differently able children and
children who cannot look after themselves. Article 39 relates to children’s right.

SECTION :117 Visitation right: When a court awards exclusive child custody to one
parent, the non-custodial parent maintains the right to see and visit the child, absent
extraordinary circumstances.

If the court's custody decree fails to mention visitation rights, the law implies the parent's right
to visitation. Thus, an express prohibition on visitation must exist within the decree in order to
deny parental visitation rights because visitation rights stem from the fact of parenthood.

Where the mother and father have lawfully separated, the responsible parent must allow
visitations and some duration stays with the other parent.

if such visitations and stays are against the best interest of the child, then the court may issue an
order prohibiting such visitations.

The visitation conditions shall be as per the consensus among the separated mother or father, if
any, otherwise as per the court orders.
Prohibition on Visitation: If a party convinces the court that visitation rights would be
injurious to the child's best interests, then the court possesses the authority to deny
visitation rights.

For the best interest of the child courts may deny visitation rights to noncustodial parents
who had physically or emotionally abused the child in the past and noncustodial parents
severely suffering from a mental illness that would emotionally devastate the child.
Noncustodial parents who are incarcerated or who have a prison record are categorically
denied visitation rights.

SECTION:114
Obligation to care and maintenance : Mother father shall jointly look after and care for
the infant child. In taking care of the infant, the parents shall arrange for the necessary
health, education, entertainment and so on as per their economic status and capacity.
SECTION:116
Obligation to care and maintenance : The responsible mother or father shall take
necessary care and maintenance of the child as per their economic status and capacity.
If the income is greater than the income of the responsible parent, then the non-responsible
parent must pay the agreed (If any agreement) or court decide amount to the responsible
parent for the maintenance, education, and treatment of the child.
Obligation to care : If there is no such consensus, then it shall be as follows:
 If the child is below 5 years of age, then under the responsibility of the
mother;
 If the child is of 5 years of age or below 10 years, then under the
responsibility of the father;
 If the child is above 10 years of age then it shall be the responsibility of the
mother or father who the child has chosen to live with.
SECTION:115
Responsibility of mother or father : if the marriage between the father and
mother is dissolved, the child born from them shall be in the responsibility of the
mother or father as follows:
 If the child is below 5 years of age, if the mother wishes then with the
mother, irrespective of re-married or not;
 If the child is above five years of age, if the mother wishes then with the
mother except if she is married;
 In any situation except mentioned above, the father shall bear the
responsibility. (sec 115)
SECTION:115
If the husband and wife, at the time of divorce or separation, have an agreement
regarding the responsibility of child post dissolution, then it shall be as per such
agreement. (sec 115(2))

If the child is above 10 years of age, then the opinion of the child regarding who s/he
wants to stay with, may be taken. (sec 115(3)

if the mother or father who is supposed to take responsibility dies, the other living
father or mother should take responsibility of such child without any delay.
However, if the mother is remarried and the child is above five years of age, she shall
not be forced to take responsibility for such child. (sec 115(4))

In case of separation of husband and wife as per the law, the maintenance, education
and treatment of the child shall be as per the consensus between the husband and
wife, if there is a consensus.
Provisions related to maternal and paternal authority:
Section 124: children shall be under the supervision and control of parents.
Children shall abide by the rules, order given by parents.
Section 125: parents shall use their authority jointly.
Section 126: duty, rights, and obligation of the person with parental authority.
Section 127: Parents shall not discriminate on the basis of gender
Section 128: Special care, facilities and protection to be given to children if they are (i)
physically or mentally disabled, (ii) suffering from life threatening diseases such as
HIV of Hepatitis B.
Section 129: May discipline a child’s behavior (However, shall not inflict any physical
or mental distresses).
Section 130: Parents may delegate their parental authority to Principle or teacher of an
educational institution where the child is enrolled, empowering them to use the power
pursuant to Section 129.
Section 131: Protector or responsible person may use maternal or paternal authority.
Section 132: May prohibit maternal or paternal authority.
Section 133: Termination of maternal or paternal authority.
Section 134: Limitation.
Provision related to guardians:
Section 135: A person appointed and responsible to protect the rights, interests of disabled
or semi-abled to be considered as guardian.
Section 136: Hierarchy of guardian (Among close family)
Section 137: Other people other than mentioned in Section 136 may also be appointed as
guardian.
Section 138: Institution may be guardian.
Section 139: The Court may appoint a guardian.
Section 140: The Court may also appoint an inspector to monitor the appointed guardian.
Section 141: Persons who may not be guardians.
Section 142: Caretaking and maintenance of incapable or partially incapable person.
Section 148: Termination of Guardianship.
Section 152: Limitation.

Provisions related to protector (Mathawar)

Section 153: Protector to infant.
Section 155: Mother may be protector to an infant.
Section 156: Institution may be Protector.
Section 160: Property may be utilized.
Section 163 and Section 164: Termination of Protection.
Section 168: Limitation.
Children’s Act 2075
Rights of the child (chapter 2) : Name, nationality and identity of a child. (sec 4)
No discrimination : no discrimination made against on any child against religion etc.
(sec 5)
Right to protection (sec 7), Right to privacy (sec 11), Special rights of children with
disabilities (sec 12), Right to nutrition and health (sec 13), Right to sports,
entertainment and culture (sec 14), Right to education (sec 15)

Responsibility towards Children (chapter 3)

Priority to be given for the best interests of children (sec 16); Responsibility of
the family or guardian (sec 17), Obligation of the State (sec 18), responsibility of
the media sector (sec 19).
Special Protection and Rehabilitation of Children (chapter 5)
Children in need of special protection (sec 48), Provision of alternative care (sec
49), Protection of children (sec 50), appoint or designate guardian (sec 51)