Moot Problem

Mr. Kamlesh and Mrs Anita, citizens of Indicana, got married in the year 2005. They shifted to
the United States of America after one year of their marriage and started working there. After
10 years of their marriage, it was discovered that Mrs. Anita cannot bear a child due to certain
health issues. The issue of infertility amongst the healthy married couple has been a matter of
great concern worldwide. An immense desire to have a child has led the medical scientists to
evolve innovative reproductive techniques to bless such couples with a child. Various types of
Assisted Reproductive Techniques (ART) have been developed globally to deal with the issue of
infertility amongst the married couple. ‘Surrogacy’ is one such type of Assisted Reproductive
Technique. Mr. Kamlesh and Mrs Anita in order to have their own biological child, jointly
decided to have a child through surrogacy. For that purpose, they travelled to Indicana in the
year 2016. With a population of more than 1.2 billion people, Indicana is one of the most
favored destinations for a number of couples from all around the world, who are looking for
surrogate mothers. The main reason for Indicana becoming a popular destination for surrogacy
is due to the low price and also the absence of statute to regulate surrogacy. In the year 2002
the Government of Indicana legalized commercial surrogacy and thereafter surrogacies were
regulated by the guidelines of Indicana Council for Medical Research (ICMR) and the same
opened the flood gates for various surrogacy clinics in Indicana. These attracted many childless
couples to opt for Indicana to have their surrogate child. After arriving at Indicana, Mr. Kamlesh
and Mrs Anita identified an agency called “Smiling Child” in the city of Delta, Indicana’s capital
territory, which arranges surrogate mothers for childless couples. Through “Smiling Child”
agency, they entered into a Commercial surrogacy agreement on 15-05-2017 with Mrs. Suzaine,
who was willing to become a surrogate mother for Mr. Kamlesh and Mrs Anita upon the
following terms and condition :

a. The parties to the contract would never disclose the fact of commercial surrogacy to a
third person.

b. To protect health, for nurturing a child in her womb during pregnancy and for
delivering the child, Suzaine would be paid a consideration of Rs. Five Lakhs only.

c. After the birth of the child, the child would be immediately handed over to the
custody of Anita.
 d. After the birth of the child, Suzaine i.e. ‘Surrogate Mother’ would cease to have any
relation with the child.

Consequently, in the year of July, 2017 through IVF (In Vitro Fertilization) process done by Dr.
Mohan, a gynecologist of a private hospital of Delta, Suzaine became pregnant. During this
phase, Mrs. Suzaine had to be hospitalized a number of times due to the hormonal imbalance
caused because of the IVF process. In her second ultrasonography, after 20 weeks of
pregnancy, doctors had discovered about deformity in the fetus. It was informed to her and to
the commissioning parents that the child may suffer from physical and mental challenges due to
this deformity and there is also a possibility that the mother would loss the capacity of
becoming mother again in future. Mr. Kamlesh and Mrs Anita yet agreed for the surrogacy and
assured Mrs Suzaine that they would also take better care of her , if so required they would
take her to the best hospital for delivery and thus Mrs Suzaine should honour the contract.
Considering the physical risk in giving birth to the child as well as for welfare of the child, Mrs
Suzaine having left with no choice except abortion, decided to terminate her pregnancy. She
visited Delta Civil Hospital to terminate her pregnancy. However, she was denied permission to
abort the child, by the doctor on the ground that her pregnancy has crossed 20 weeks of
permitted period for abortion according to Prohibition of Abortion Act, 1971. She decided to
take legal recourse. She approached the Delta High Court for seeking direction to the Delta
Civil Hospital for abortion beyond the permitted 20 weeks. The Delta High Court refused to
grant permission to terminate the pregnancy based on the provisions of Prohibition of Abortion
Act, 1971 and the fundamental right to life of the fetus under Article 21 of the Indicana
Constitution and moreover as she has a contractual obligation towards Mr. Kamlesh and Mrs.
Anita. The Court, while denying permission for abortion, had also taken into consideration the
report of a panel of doctors submitted to the court stating the fact that there is no physical risk
to Mrs. Suzaine in continuation of her pregnancy. However, the same panel of doctors also
confirmed in the report that due to the deformity, the child could be mentally as well as
physically challenged. Mrs Suzaine approached the Indicana Supreme Court challenging the
legality and correctness of the order passed by the Delta High Court. The Supreme Court
granted leave and admitted the matters and taking into account the larger question raised by
the petitioner, requested the Chief Justice of the Supreme Court of Indicana to post it before a
Constitutional Bench . Hence, the matter is now posted before a Constitutional Bench for final
disposal.
The issues mainly argued before the Delta High court covered the legality of the contract of
‘commercial surrogacy’, the rights of surrogate child, the rights of surrogate mother, human
exploitation in commercial surrogacy and enforcement of surrogacy contracts inter alia amongst
others. The validity of Section 3 of the Prohibition of Abortion Act, 1971 has also been
challenged.

Note: The Constitution of Indicana adopts the Constitution of India verbatim and all the
provisions of the Constitution of India are incorporated as the provisions of Indicana
Constitution. The powers and the jurisdiction of the Indicana Supreme Court are the same as
the powers and the jurisdiction of the Supreme Court of India. The provisions of Prohibition of
Abortion Act, 1971 are same as that of the Medical Termination of Pregnancy Act, 1971 passed
by the Indian Legislature. The rest of the laws of Indicana, are in parimateria with the laws of
India.