Professional Documents
Culture Documents
FRICTION,
W.P. NO . ____/2008
v.
W R ITTEN F ILED ON B EH A LF OF R ES P O N D EN T ,
C O U N S EL A P P EA R IN G ON B EH A LF OF R ES P O N D EN T .
i
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
T A B L E O F C O N T E N T S
T A B L E O F C O N T E N T S .................................................................................I I
Q U E S T I O N S P R E S E N T E D .............................................................................V
S U M M A R Y O F A R G U M E N T S ..................................................................V I I
A R G U M E N T S A D V A N C E D ............................................................................1
P R A Y E R ................................................................................................................1 6
ii
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
S T A T E M E N T O F F A C T S
I N T R O D U C T I O N
The Godbole couple, Mr. Rakesh Godbole and Mrs. Ishitaa Godbole, are the citizens of
Union of Friction who entered into an agreement with petitioners regarding a surrogacy
issued by a medical research body called Friction Council of Medical Research. According to
the agreement she was supposed to be the surrogate of the child who will be conceived by her
T E R M S O F T H E A G R E E M E N T
According to the terms of agreement, the procedure which was to be performed for the
procreation of the child was artificial insemination. In fact it was the “purpose and intend” of
the parties. Apart from it, the agreement had clauses which laid down duties and
responsibilities of the parties, the limitation of their liabilities, the custody right of the child
and the parental right of the parties and lastly, the terms for facilitation of the legal processes
T H E I N T E N T I O N O F T H E P E T I T I O N E R S
The petitioners were a childless couple from Union of Diaspora, who were always keen to
have a genetic child but due to some problem in the uterus, Mrs. Handsome was not able to
give birth to a one. So, they planned to have a child via IVF treatment and surrogacy. That
was the reason why they came to the Union of Friction because surrogacy was banned in their
country. After coming to the Union of Friction, they took a second opinion from Dr. Kirti
Madman, who worked in a government college called Friction Medical College and Hospital,
regarding their choice of treatment and finally settled down with the procedure of IVF. But,
just to get the consent of the surrogate, in the agreement, they put their choice of treatment as
artificial insemination.
iii
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
A C T O F T H E P A R T I E S
As intended earlier, the petitioners went ahead with their plan of IVF and not artificial
insemination as they had agreed upon in the agreement. Once the procedure was over and
Mrs. Godbole was pregnant with their embryo, the petitioners went back to their country and
Meanwhile, Dr. Kirti Madman, under whose consultation Mrs. Godbole was, died so she had
no other option but to change the doctor. On June 19, 2008, she gave birth to a healthy baby
boy in the private clinic of her new doctor, Dr. Harried Kind. A birth certificate showing her
as the mother was also issued. The petitioners weren’t even there at the time of delivery and
came only after one week. But, as soon as they came, they demanded the child from the
Godbole couple, which they refused to give. Thus, the petitioners had filed a wrong case of
iv
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
Q U E S T I O N S P R E S E N T E D
I. WHETHER THE AGREEMENT BETWEEN THE PETITIONERS AND THE GODBOLE COUPLE IS
ENFORCEABLE?
2. Arguendo, the contract is voidable at the instance of godboles, since the consent
II. WHETHER THE GODBOLES CAN BE CALLED THE “NATURAL PARENTS” OF THE CHILD?
motherhood.
child is immense.
2. Only the Godboles can ensure the best interest of the child.
v
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
IV. WHETHER THE FUNDAMENTAL RIGHT OF THE PETITIONER HAS BEEN VIOLATED UNDER ARTICLE
1. When the right to personal liberty is infringed by private persons, then the
vi
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
S U M M A R Y O F A R G U M E N T S
(I) WHETHER THE AGREEMENT BETWEEN THE PETITIONERS AND THE GODBOLE COUPLE IS
ENFORCEABLE
• The agreement in question had a clause which puts a bar on the freedom of party to
approach the court for the enforcement of their legal rights. So, according to Sec. 28
• Since fraud was committed by the petitioner, the agreement is voidable at the instance
of the defendants.
• Clause 5.1 and 5.4 of the agreement, which compels the party to undergo a DNA test
are violative of the fundamental rights given under Art. 21 of the Constitution.
contract will be harmful for the public policy of that country, since it will encourage
(II)WHETHER THE GODBOLES CAN BE CALLED THE “NATURAL PARENTS” OF THE CHILD?
• The role of Mrs. Godbole was very vital for the development of child in the womb
since she was source of all the nutrients to him and was responsible for shaping up his
personality. Adding to it, she exposed herself to the life, threatening risks which occur
during the pregnancy. Various studies show that there development a bond during
• The petitioner showed very indifferent and irresponsible behaviour during the
vii
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
• Godboles are the legal custodians of the child whereas a writ is issued only against
• Writ of habeas corpus against private person can be issued only under Article 226 and
(IV) WHETHER THE FUNDAMENTAL RIGHT OF THE PETITIONERS HAVE BEEN VIOLATED UNDER
• There has been no violation of fundamental right of the petitioners by the state.
• Mrs. Godbole was the legal guardian of the child, whereas petitioners don’t have any
right over the child. So, the demand made by the petitioner to have the child without
following any due process of law is violative of the fundamental right of the Godbole
viii
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
A R G U M E N T S A D V A N C E D
(I) WHETHER THE AGREEMENT BETWEEN THE PETITIONERS AND THE GODBOLE COUPLE IS
ENFORCEABLE?
The said agreement attracts section 28 of the Friction Contract Act, 1872, because the clause
3.2 of the agreement, acts as a constraint on legal proceedings and any agreement which
restrains legal proceedings are void1. Section 28 applies to the agreements which wholly or
partially prohibit the parties from having recourse to a court of law.2 It also affirms Common
Law provisions which ‘appear to embody a general rule recognized in the English Courts
which prohibits all agreements purporting to oust the jurisdiction of the Courts’.3
Thus, an agreement is void to the extent it restricts absolutely the party from enforcing his
contractual rights by usual proceedings in ordinary courts.4 No man can exclude himself from
the protection of the courts by contract.5 The citizen has the right to have his legal position
In the present case, clause 3.2 of the agreement, categorically mentions that the surrogate
parents shall have to relinquish all their “legal rights” towards the child. So, the clause debars
the surrogate parents to take the recourse of court in case of any breach. Since it is a
fundamental as well as a constitutional principle of the highest importance that civil disputes
1
Sec 28 of FCA which says every agreement by which any party thereto is restricted
absolutely from enforcing his rights under or in respect of any contract, by the usual legal
proceedings in the ordinary tribunals…is void to that extent.
2
Coringa Oil Co. v. Keogler, (1876)1 Cal 466, 468-69. Explaining section 28 in this case,
Garth CJ observed that if, for instance, a contract were to contain a stipulation that no action
should be brought upon it, that stipulation would…be void, because it would restrict (both)
parties from enforcing their rights under the contract in the ordinary legal tribunals.
3
Baker v. Jones (1954) 2 All ER 553.
4
Pollock and Mulla, Indian Contract and Specific Relief Acts, 13th ed., LexisNexis
Butterworths, p 863
5
Rehmatunnissa Begum v. Price AIR 1917 PC 116
6
ABC Laminart Pvt Ltd v. AP Agencies, Salem AIR 1989 SC 1239; Vulcan Insurance Co Ltd
v. Maharaj Singh AIR 1976 SC 287.
1
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
can only, in the last resort, be settled by the courts, and any attempt to contract out of this
principle is against the public policy.7 Thus, the agreement which “purport to oust the
jurisdiction of the court” is indeed, in conflict with the set standards of law.
2. Arguendo, the contract is voidable at the instance of Godboles, since the consent of the
Fraud is said to be committed where one party causes another to act on a false belief by a
representation which he doesn’t himself believe to be true.8 To prove a case of fraud, it must
be proved that representations made were false to the knowledge of the party making them.
In the present case, the petitioners always wanted to have their genetic child10 and so decided
to go in for IVF11, but for the sake of contract with the surrogate parents, they merely
mentioned that the procedure of begetting the child would be artificial insemination12, which
they very well knew to be a different procedure13. So, the petitioner knowingly made a false
representation to the Godboles, which was false in substance and in fact. This also amounts to
making of promise without any intention to follow it, which is a breach.14 The visit of
intended parents to the hospital and their decision to go for the IVF as mentioned in the fact-
sheet, are the positive material on record to draw the inference of fraud.15
7
Atiyah, Introduction to the Law of Contract, 6th ed., Oxford University Press, p 223. The
author was also of the opinion that there are certain categories of agreement which should not
be enforced. In surrogacy contract, the court always perceived moral or social value of
contract. In such contract court see the intelligence, sophistication and independence of
parties.
8
supra 4, p 513. Fraud has been defined in section 17 of the FCA.
9
R.C.Thakkar v. Gujrat Housing Board AIR 1973 Guj 34.
10
according to fact sheet, pg 1.
11
according to fact sheet, pg 6.
12
according to clause 1.3 of the agreement in instance.
13
clause 1.3 of the agreement itself explains the process of artificial insemination elaborately
saying that it is done with the sperm of the father, leaving no scope of confusion. This would
result in the child being genetically similar to the intended father and the surrogate mother,
which was never intended by the petitioners in the first place.
14
Clause 3 of section 17 of FCA.
15
Passarilal Mannoolal v. Chhuttanbai AIR 1958 MP 417.
2
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
Moreover, the fraudulent misrepresentation needs to be material, that is, such that a
reasonable man would have been influenced by it in deciding whether or not enter into a
contract.16 In the instant case, the surrogate mother consented for artificial insemination and
she had no means of discovering the true intention of the petitioners that they were planning
for an IVF, until she was told by the petitioners themselves. It is important to note that the
difference between the procedure of IVF and Artificial insemination is critical. If the
surrogate mother would have known that she would be subjected to the former and not the
latter, she would have not given her consent to it, since the procedure of artificial
insemination gives a woman the status of genetic as well as the gestational mother, while the
It is humbly submitted that the clause 5 of the agreement which deals with “conformation of
genetic parentage” and in specific clauses 5.117 and 5.418 of the agreement which makes it
binding on the surrogate parents to submit themselves for a DNA test, is violative of the their
right to privacy, which is enshrined under Art 21 of the Constitution of Friction. To compel a
person to undergo or to submit himself or herself to medical examination of his or her blood
or that like without his or her consent or against his or her wish tantamount to interference
with his or her Fundamental Right of life and liberty, particularly when there is no provision
either in the Code of Civil Procedure or the Evidence Act or any other law which may be said
16
Bhagwani Bai v. Life Insurance Corp. of India AIR 1984 MP 126.
17
clause 5.1 says that “prior to and/or subsequent to the birth of the child, the surrogate shall
submit, if requested by the intended parents and as soon as reasonably possible to a DNA or
any other recognized scientific test to confirm the genetic parentage of the child,…”
18
clause 5.4 says that “the parties also agree to any DNA testing or other legally recognized
scientific testing, if required by any court of competent jurisdiction.”
19
Syed Mohd. Ghouse v. Noorunnisaa Begum, 2001 Cri LJ 2028.
3
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
In the present case, by including such a clause in the agreement, the petitioners have tried to
compel the Godbole’s to undergo the DNA test as per the whims and desires of the petitioners
which is a clear violation of their fundamental right given under Art 21.
the personal liberty of a person20. In the landmark judgement given in Goutam Kundu v. State
of West Bengal21, the apex court gave some guidelines regarding this matter which included
that no one can be compelled to give a sample of blood for analysis and that the courts in
In the present case, the clauses clearly lay down that at the instance of petitioners, the
Godboles’ will have to submit themselves to any scientific test to confirm the parentage of the
child which leaves them with no scope to exercise their right to life and personal liberty and
right to privacy, which are given to them by the Constitution. Such clauses, which are
Union of Diaspora.
The public policy of a friendly foreign country, where the agreement in question has to be
performed can be taken into account while enforcing the agreement in England. According to
the principle laid down by the Court of Queen’s Bench Division in the case of Lemenda
Trading Co Ltd v. African Middle East Petroleum Co Ltd22, the public policy of a friendly
state cannot, itself prevent the enforcement of a contract in England, but even so, an English
Court would not enforce a contract related to a transaction which is contrary to the English
public policy founded on general principles of morality and the same public policy is
applicable in the friendly foreign country where the contract was to be performed so that the
20
Bipinchandra Shantilal Bhatt v. Madhuriben B. Bhatt, AIR 1963 Guj. 250.
21
AIR 1993 SC 295.
22
1988 1 QBD 513.
4
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
contract is not enforceable under the law of that country, because in such circumstances the
international comity combined with English domestic public policy would militate against
enforcement.23 Presumably, therefore, the English court would apply the rule that has been
laid down in the United States of America and would refuse to enforce any contract which
In the present case, drawing the analogy from the above principle of respecting the public
policy of other nations, the contract of surrogacy should not be enforced in the Union of
Friction as it is banned in the Union of Diaspora, from where the petitioners come. The
banning of an act shows that it is strictly against the public policies of that nation and the
Enforcing such kind of contracts in other countries will have a negative impact on the public
policy of the Union of Diaspora. First of all, it will frustrate the purpose of banning them in a
country because then, like the present case, the citizens of the country would go out of their
country to perform the act which is banned in their homeland, which should be prohibited.
Secondly, the legal rights of children born through such surrogacy arrangements might not be
very clear in a country which bans surrogacy. This will neither be in the interest of the child
OF THE CHILD?
1. The vital role of a gestational mother in pregnancy entitles her to the motherhood.
23
The court also cited Kaufman v. Gerson (1904) 1 KB 591, where a Frenchman coerced a
Frenchwoman into signing a contract in France by the threat that if she refused to sign it he
would prosecute the husband for the crime of which he was accused. The contract was valid
by French law but the action brought for its breach in England was dismissed on the ground
that to enforce it “would contravene what by law of this country is deemed as an essential
moral interest”.
24
Cheshire, Law of Contract, 15th ed., Fifoot and Furmston, pp 370-371.
5
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
It is humbly submitted before the hon’ble court that in the gestation period, a mother makes
vital contributions towards the child, apart from providing the favourable gestational
(a) The contribution of gestational mother towards the development of the child
is immense.
The gestational mother clearly makes a greater investment in the child in terms of effort and
time expended than the genetic mother, and thus, she has a greater claim to motherhood. The
nine months of investment in the child and the labour involved in giving birth tilt the equation
in favour, of granting her the child. Rather than donating the egg, the surrogate mother while
gestation establishes "sweat equity" in the child she is carrying.25 So, at the end of the birth
process, the woman who gives birth to the child will have contributed much more of herself
than the egg donor in order to bring about the child's birth.
The woman who provides the gestational environment for a child makes an indispensable
contribution to this child's physical growth and sustenance.26 The gestational mother makes a
substantial contribution not only to the physical development of the child, but to the child's
emotional and psychological development as well.27 She helps determine the emotional
makeup, temperament, and dispositions of the child, and in some cases, she contributes to the
child's physical form.28 A number of factors are involved predicting a child’s behaviour,
including maternal anxiety during pregnancy, negative perceptions of the pregnant mother
25
Ruth Macklin, Artificial Means of Reproduction and Our Understanding of the Family,
Hastings Ctr. Rep., Jan.-Feb. 1991.
26
Ibid.
27
Andrea E. Stumpf, Redefining Mother: A Legal Matrix for New Reproductive Technologies,
96 Yale L.J. 187, 197-208 (1986).
28
B.R.H. Van den Bergh, The Influence of Maternal Emotions During Pregnancy on Fetal
and Neonatal Behavior, 5 Pre- and Peri-Natal Psychol. 119, 127 (1990). Apart from it,
Thomas Verny, M.D. & John Kelly, The Secret Life of the Unborn Child, 47, 47-48 (1981)
mentions that studies shows that “personality characteristics and traits begin forming in
utero. Our likes and dislikes, fears and phobias - in other words, all the distinct behaviors
that make us uniquely ourselves - are, in part, also the product of conditioned learning which
happens in the womb.”
6
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
toward the child, hormonal changes, and heredity.29 Thus, to suggest that an embryo could be
implanted in any woman and produce the same child as if the embryo had been placed in
another woman, runs counter to the facts of prenatal psychology.30 Therefore, although the
reasons for the correlation are unclear, the existence of the link itself is certain.
In the present case also, the gestational setting may not have a great influence on the physical
features but it has a substantial impact on the personality and cannot be classified as a neutral
element in the formation of the child. Mrs. Godbole has carried the baby for the whole term
of nine months. Apart from providing him a favourable gestational environment,31 she had
contributed immensely towards the formation of his personality. Thus, keeping in view her
Pregnancy exposes a mother to various life-threatening risks right from the early stages of
pregnancy till the child birth. Sometimes there is haemorrhage at the early stage of
pregnancy, which might lead to excessive blood loss and death of the mother.32 Toxaemia of
29
ibid, The author also said that “although contribution of gestation to the child's physical
form is often negative, however, due to the gestational mother's consumption of substances
such as tobacco, alcohol, or drugs which clearly and negatively affect the physical
development of the child.” Arnold J. Sameroff, Ph.D. & Melvin Zax, Perinatal
Characteristics in the Offspring of Schizophrenic Women, 157 J. Nervous & Mental Disease
191, 191-99 (1973) mentions in his work that “mother's neglect of her fetus and later
emotional problems experienced by the child. Studies conducted on schizophrenic pregnant
women indicate that these women are not capable of providing a nurturing, communicative
environment for the child. The lack of such an environment leaves devastating, emotional
scars. The child then enters the world with more physical as well as emotional difficulties
than a child carried by an emotionally healthy mother.’
30
Scott B. Rae, Parental Rights And The Definition Of Motherhood In Surrogate
Motherhood, 3 S. Cal. Rev. L. & Women's Stud. 219.
31
ibid, the article also defined “favourable gestational environment” to mean that the child was
able to get all the nutrients required for the normal development of the baby in the womb, in
the gestation period.
32
Holland and Brews, Manual of Obstetrics, 14th Ed, English Language Book Society And
Churchill Livingstone.
7
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
pregnancy is another dangerous condition which might occur during the pregnancy.33 At any
stage of pregnancy, if this infection spreads to the uterus and fallopian tube, it may lead to
secondary infertility, which is an inability to conceive in the future.34 All these facts go on to
show that combination of biological investment and the risk undertaken during the term of
The combination of biology and the relationship inherent in gestation supports the theory that
motherhood should be vested in the woman who bears the child. In the instant case, it is only
Mrs. Godbole, who had exposed herself to all these life threatening risks. Moreover, it was
her first pregnancy and if anything went wrong, there was a chance that she could never
conceive again and it would have left her childless for the whole life. Thus, this relationship
The traditional view of motherhood presupposes that a woman who gives birth to a child is
conclusively presumed to be the "mother" with full, uncontested maternal rights to the child.36
The genetic link between the intended parents and the resulting infant, while important, is less
important than the link between surrogate mother and foetus or infant that is created through
33
Ibid.
34
Ibid.
35
Rumplestilskin Revisited, The Inalienable Rights of Surrogate Mothers, 99 Harv. L. Rev.
1936, 1951-52 (1986).
36
American College of Obstetricians and Gynecologists, Statement of Policy, Ethical Issues
in Surrogate Motherhood 56 (1983), reprinted in Surrogate Motherhood: Politics and Privacy
300-03 (Larry Gostin ed., 1990).
37
Ibid this view was supported by American Civil Liberties Union, Policy on Surrogate
Parenting 1 (1987) saying that "whether the woman who gives birth to a child is a genetic
parent is irrelevant to her parental rights." and Barbara Katz Rothman, Surrogacy Contracts:
A Misconception, Daily J. Rpt., Apr. 1, 1986, at 17, 19., who says that any pregnant woman
is the mother of the child she bears. Her gestational relationship establishes her motherhood.
We will not accept the idea that we can look at a woman, heavy with child, and say the child
is not hers. The foetus is part of the woman's body, regardless of the source of the egg and
sperm. Biological motherhood is not a service, not a commodity, but a relationship.
8
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
In the present case, Mrs. Godbole is the woman who gave birth to the child. She is the mother
of the child by virtue of giving birth to him. Moreover, analyzing Lehr v. Robertson38 and
Caben v. Mohhamed39, it can be implied that biology and relationship are not necessarily
linked in paternity. However, the components are closely interrelated in maternity. Thus, a
relationship between parent and child arises for mothers from the gestational link in a way
that it cannot for fathers.40 So, here, since Mrs. Godbole is the mother, who had a relationship
with the child, due to the fact that she has gestated him, makes her claim to motherhood more
potent.
Furthermore, due to gestation there exists a very strong bond between the gestational mother
and the child. Various studies support this preposition that there is strong bonding between
the mother and the child during gestation.41 The bond of the egg and sperm donors is only
anticipated and potential, which is qualitatively different from the bond experienced by the
gestational mother.42 It was only for this reason that the Court, in Baby M case43 held that, a
contractual arrangement on surrogacy is violative of the public policy as the contract was
involuntary due to the irrevocable commitment of the mother before she knew the strength of
her bond with her child.44 It is this sense of bonding, which makes pregnancy essentially a
38
463 U.S. 248 (1983).
39
441 U.S. 380 (1979).
40
Janet L. Dolgin, Status and Contract in Surrogate Motherhood: An Illumination of the
Surrogacy Debate, 38 Buff. L. Rev. 515, 529-39 (1990).
41
Peter Hepper, Foetal Learning: Implications for Psychiatry, 155 Brit. J. Psychiatry 289,
289-93 (1989): The tests demonstrate the capacity of the foetus to recognize its mother's
speech and even to recognize types of music. One specific example of the foetal ability to
learn is foetal response to auditory stimuli in-utero.
42
Barbara Katz Rothman, Surrogacy Contracts: A Misconception, Daily J. Rpt., Apr. 1, 1986,
at 17, 19.
43
217 N.J. Super 313; March 31, 1987.
44
Katharine Bartlett, Re-expressing Parenthood, 98 Yale L.J. 293, 329-30 (1988). The author
says that responsibility as well as rights and privileges in parenting flow out of relationships,
not contracts. A definition of motherhood that depends solely on genetics and supports
enforcement of the contract entered into by the gestational mother ignores the powerful
combination of biology and relationship that makes the claim of the gestational mother so
9
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
relationship, physiologically and emotionally which is not dependent on genetics, but rather
Thus, by virtue of being the gestational mother, Mrs. Godbole experienced something very
significant that is not experienced by the genetic contributor. After gestating the baby for full
nine months, it was but natural for her to develop a bond towards the child. This unique
relationship, formed between her and the child, strongly supports the contention that priority
should be given to gestation over genetics when determining motherhood and the
Whenever the right of the parents and the best interest of the child are in conflict, the welfare
of the child remains the predominant consideration45 and not the legal rights of the claimant
parents, since the children are not mere play things for their parents. 46 An agreement between
parents is inevitably subservient to the considerations of best interests of the child. The
In the instant case as well, the intended parents who are claiming their parental rights towards
the child, did not even bother to know about the well being of the child and the lady who was
carrying the baby once she was impregnated with the child.48 Neither were they in touch of
the doctor as to know about the well being of the growing foetus. If they were in touch, they
10
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
would have known about her death.49 They weren’t even present at the time of the delivery of
the baby which they claim as theirs now50. Such kind of an irresponsible behaviour is not
expected from a couple who are so keen to have a baby.51 Whether these parents, who claim
their child to be so precious to them but did not even have time to be present for its arrival in
the world, will take care of the child in future, is a begging question before the court. So, the
best interest of the child will only be secured by the surrogate parents since they have taken
care of the baby since it has come to the womb of the surrogate mother and also after it has
It is humbly submitted before this hon’ble court that the writ of habeas corpus is not
It is humbly submitted that the writ of habeas corpus is a command addressed to a person
who is alleged to have another person unlawfully in his custody requiring him to bring the
body of such person before the court52. In Syed Saleemuddin v. Dr. Rukhsana,53 it has been
held that while granting a writ of habeas corpus for custody of minor children, the principal
49
according to fact-sheet pg 7.
50
according to fact-sheet pg 7.
51
according to fact-sheet pg 1.
52
Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684; Jage Ram v. Hans Raj Midha, AIR
1972 SC 1140.
53
AIR 2001 SC 2172.
11
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
consideration for the Court is to ascertain whether the custody of the child can be said to be
unlawful or illegal.
But in the present case Godboles are the legal parents of the child since they are in the
possession of the birth certificate in which Mrs. Godbole has been named as the mother of the
child. Birth certificates are considered to be an important document for settling the doubts
which arise in relation to the custody of the child.54 It is a state issued document and the
It is humbly submitted that the writ of Habeas Corpus is not issued against a private person
under Art.32 but under Art 22656. Under Art.32, Habeas Corpus can lie only when the
detention is by the State or its authorities.57 It has been specifically stated by the Supreme
Court in Vidya Verma v. Shiv Narain Verma,58 that a writ of habeas corpus would not lie
against a private party under Article 32 of the Constitution. The principle laid down in above
mentioned case was also affirmed in the case of Bijayalaxmi Tripathy v. Managing
Committee, Working Women's Hostel59. Apart from this, a writ of habeas corpus cannot be
issued, particularly when the writ is sought against a parent for the custody of a child.60
In the present case, the petitioners have filed the writ petition under Art.32, which is not
maintainable in cases of child custody since there is an alternative remedy available to the
54
Newyork Foundling v. Gatti 203 US 429 (906)
55
Ibid.
56
Only a remedy under Article 226 which is not restricted against “State” is possible, as is
usually seen in child custody cases where habeas corpus is issued by the High Court under
Article 226 of the Constitution.
57
Chandrakant v. Hiralal, AIR 1954 MB 43.
58
AIR 1956 SC 108.
59
MANU/OR/0061/1992.
60
Dushyant Somal v. Smt. Sushma Somal 1981 2 SCC 277.
12
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
petitioners that is an option to go to the High Court under Art 226. Thus, since the writ has to
be issued against the private persons, that is the Godbole couple, so it is not maintainable
Also, the writ cannot be maintained on the grounds of ‘best interest of the child’ as laid down
in the famous case of Baby M61 because while deciding a question of custody, the best
interest clause requires the Court to look into, among other things, whether the child would
get a proper atmosphere to grow physically, mentally and intellectually and whether the said
parent and his family members would shower on such child the humanly love and affection so
In the present case, it is evident that the petitioners were not interested in the child anymore.
They didn’t even find time to come to Union of Friction for once, during the pregnancy. It is
only after a considerable time has lapsed that they returned. Such a callous and lacklustre
attitude on the part of petitioners only shows how much they care for the child. Money can
buy material things, but not the care and affection which will inculcate the high morals, which
61
217 N.J. Super 313; March 31, 1987.
13
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
(IV) WHETHER THE FUNDAMENTAL RIGHT OF THE PETITIONER HAS BEEN VIOLATED UNDER ARTICLE
It is humbly submitted that the fundamental rights of the petitioner have not been violated.
1. When the right to personal liberty is infringed by private persons, then the remedy
It is humbly submitted that right of personal liberty if infringed by a private individual does
not come within the purview of Art. 21. A person whose right to personal liberty is infringed
by private person must seek his remedy under the ordinary law and not under Art 21.62
In the instant case, the state has not violated any of the fundamental rights of the petitioners.
If the petitioners feel that their fundamental right has been violated by private individuals,
62
Vidya Verma v. Sheo Narayan Verma AIR 1956 SC 108.
14
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
that is the Godbole couple, so they must seek the remedy under the ordinary law and not
Art 21 of the Constitution, apart from granting the right to life and personal liberty, also takes
into his ambit the right to procreate, which was laid down in the famous case of
under the general umbrella of the right to privacy in decisions concerning family matters,
which is an integral part of the right to life and personal liberty64. As a procreative right exists
for all, it does not apply only to the couple contracting for the surrogate mother, but applies to
all who are involved in the procreative act. Procreative freedom can be applied to both the
In the present case since by virtue of giving birth, Mrs. Godbole is the mother of the child66
so, if the child is taken away from the Godbole Couple, their right to procreation will be
infringed.
Moreover, here, Mrs.Godbole is the legitimate mother of the child, as per the birth certificate
which has been issued, so, she has a right to give or not to give the child. In the present case
the petitioners are claiming a right over her child without following the “procedure
63
AIR 2000 AP 156.
64
John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the
New Reproduction, 59 S. Cal. L. Rev. 942, 958-96 (1986).
65
Nadine Taub, Surrogacy: A Preferred Treatment for Infertility? in Surrogate Motherhood
221, 222-23. available at www. interscience.wiley.com/journal/11944.
/abstract (last visited 9 Aug. 2008).
66
Black's Law Dictionary 1031 (7th ed. 1999). defines “mother” as a woman who has given
birth or legally adopted a child.
15
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
origin.67 In the present case, the petitioners did not follow any “procedure established by law”
to get the custody of the child. Rather, they chose to show up one day and started demanding
that the Godboles should give them the child. This kind of claim made by the petitioners
violates the fundamental right of Godbole couple granted under Art 21.
P R A Y E R
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge, declare and hold that:
1. The agreement entered into by the petitioner and the Godbole couple is not valid.
2. The gestational parents should be declared as the natural parents of the child.
And pass any other order that this Hon’ble Court may deem fit in the interests of justice,
Collector of Malabar v. Erimmal, AIR 1957 SC 688; Ram Chandra v. State of Bihar, AIR
67
1961 SC 1629.
16
M EMORI AL S UBMI TTED ON THE B EHALF OF THE R ESPONDENTS
17