Surrogacy Regulation Act of 2021 Does Not Allow Surrogate Mother to Retain Custody of New-born Child for Breastfeeding: Gujarat High Court

The Gujarat High Court on 27th June 2022 ruled that the Surrogacy Regulation Act of 2021 does not include any provision requiring the surrogate mother to keep custody of a new-born child for a specified amount of time to breastfeed, through the division bench of Justice Vipul M. Pancholi and Justice Sandee N. Bhatt in the case of ENA w/o Ashish Jain vs State of Gujarat (Special Criminal Application No. 6490 of 2022).



The petitioners had filed the present petition under Article 226 of the Constitution of India, seeking that a writ of Habeas Corpus is issued directing the respondent nos. 2 to 5 to hand over custody of the corpus-newly born baby girl to the present petitioners.

The petitioners in this case were a married couple who wanted to become parents through surrogacy. As a result, they reached an agreement with a woman who consented to become a surrogate mother for them. It was decided that custody of the child would be given to the petitioners, i.e., the intended parents, immediately after delivery. The surrogate mother was arrested by police before the due date of the delivery due to an FIR registered against her. She thereafter gave birth to a baby girl.

The petitioners informed the medical staff and police officers that the surrogate mother was obliged by the surrogacy agreement to give over custody of the newly born child to them. As a result, the petitioners were handed custody in the presence of the medical staff and the concerned doctor. However, the concerned medical official and employees of the civil hospital requested that the petitioners return the child to the civil hospital since the Respondent, i.e., Superintendent of Police, Sabarmati jail, was insisting on the child’s custody. This was despite the surrogate mother confirming the conditions of the surrogacy agreement and agreeing to give the petitioners custody of the child.

While shedding light on the legal provisions of the matter, the Assistant Public Prosecutor stated that the Surrogacy Regulation Act, 2021 had no provision mandating the surrogate mother to keep custody of the child for a specific duration for purpose of breastfeeding. However, the APP stated that there was a reference to the importance of breastfeeding the child for the first 6 months from the date of birth in the National Guidelines on Infant and Young Child Feeding issued by the Ministry of Human Resource Development Department of Women and Child Development (Food and Nutrition Board), Government of India.

The respondents refused to allow the petitioners custody of the newly born child because the grounds that there was no Court order for the same, and so, because the surrogate mother needed to be sent to judicial custody, custody of the newly born child would not be handed over to the petitioners.


The court relied on Clause 1(J), Clause 1(O), Clause 6(B), Section 2(zd), and Section 8 Surrogacy Regulation Act, 2021, as well as the agreement entered into by the parties.  The court also relied on the case of Navjot Singh Sidhu vs the State of Punjab and Others [(2007) 2 SCC 574], in which the Supreme Court held that courts must interpret the law as it stands, not on considerations of the perceived morality.

Thus, in the absence of any provision in the Surrogacy Regulation Act, 2021 mandating the surrogate mother to retain custody of the child for a specific period for breastfeeding, the Court held that custody of the corpus, i.e., newly born child, was required to be handed over to the intended parents/petitioners.

Accordingly, the petition was allowed.

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