LAW TRYST 2016, NATIONAL LEVEL MOOT COURT COMPETITION

Table of Contents

INDEX OF AUTHORITIES................................................................................................................... 2
Judicial Precedent ............................................................................................................................... 2
Books Referred ................................................................................................................................... 3
Law Reports ........................................................................................................................................ 3
Statutes Referred ................................................................................................................................. 3
List of Abbreviation ............................................................................................................................ 3
STATEMENT OF JURISDICTION ....................................................................................................... 4
STATEMENT OF FACTS ..................................................................................................................... 5
BACKGROUND ................................................................................................................................ 5
JUDICIAL PROCEDINGS ................................................................................................................ 6
APPLYING FOR PASSPORT ........................................................................................................... 6
PRESENT SCENARIO ...................................................................................................................... 7
STATEMENT OF ISSUES .................................................................................................................... 8
SUMMARY OF ARGUEMENTS ......................................................................................................... 9
ARGUMENTS ADVANCED .............................................................................................................. 10
WHETHER THE PRESENT PETITION UNDER ARTICLE 32 IS MAINTAINABLE AS A
PUBLIC INTEREST LITIGATION? ............................................................................................... 10
(A) Vacuum in the Laws regulating Surrogacy ............................................................................ 11
(B) Violation of Fundamental Rights of the stakeholders of surrogacy industry ......................... 12
(C) Duty of the Court to Afford Relief where Violation of Fundamental Rights Has Been
Established .................................................................................................................................... 14
(D) Supreme Court has enough Powers and Precedents to grant relief in the present case .......... 15
WHETHER THE INTERPRETATION OF THE WORD MOTHER IS AGAINST THE
REGISTRATION OF BIRTH & DEATH ACT AND THE CHILDREN ARE ENTITLED TO GET
BIRTH CERTIFICATES? ................................................................................................................ 17
(A) Interpretation of mother is against the Registration of Births and Deaths Act itself .......... 17
(B) Respective Authorities have not followed the Due Process of law. ...................................... 19
WHETHER THE CHILDREN ARE QUALIFIED FOR INDIAN CITIZENSHIP THEREBY
ENTITLED FOR A PASSPORT ...................................................................................................... 22
(A) Children Are Qualified For Citizenship ................................................................................ 22
(B) Children Are Entitled For Passport......................................................................................... 23
PRAYERS ............................................................................................................................................ 25

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INDEX OF AUTHORITIES
Judicial Precedents
Assam Railways & trading Co.ltd V. IRC, 1935) AC 445; .................................................................. 18
Baby Manji Yamada vs Union Of India & Anr, Writ Petition (C) No. 369 Of 2008 ........................... 12
Bodhisattawa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 (para 6 and 7) : AIR 1996 SC 922 .. 9
Chairman, Railway Board v. Chandrima Das ....................................................................................... 11
Common Cause v. Union of India, AIR 1996 SCC 929 ....................................................................... 14
Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922, at 941: (1995) 3 SCC
42 ...................................................................................................................................................... 14
Daryao v. State of U.P., AIR 1961 SC 1457 (1461) : 1962 (1) SCR 574 ............................................. 13
Delhi Electricity Supply Undertaking v. Basanti Devi, AIR 2000 SC 43, 49 : (1999) 8 SCC 229 ...... 13
District Minister Officer v. Tata Iron and Steel Co., AIR 2001 SC 3134, pg. 3154 ............................. 16
Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 at 753: (1981) 1 SCC
608 .................................................................................................................................................... 11
Guruvayur Devaswom Managing Commit. & Anr. v. C.K. Rajan & Others, Appeal (civil) 2148 of
1994, Supreme Court. ....................................................................................................................... 10
Haryana State Electricity Board v. M/S Hanuman Rice Mills Dhanauri & Ors. On 20th August 2010 10
Indian Banks Association, Bombay V. Devkala Consultancy Service, (2004) 11 SCC 1; ..................... 9
Jan Balaz Vs. Anand Municipality & Anr; AIR 2010 Gujarat HC 21 .................................................. 19
Janta Dal v. Chowdhury, H.S., (1992) 4 SCC 305 : AIR 1993 SC 892 .................................................. 9
Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1974) 2 SCC 348 .............................................. 13
Kochunni v. State of Madras, AIR 1959 SC 725 (729) : 1959 (2) Supp. 316 ...................................... 13
Kuldeep Nayar v. Union of India & Ors. (2006) 7 SCC 1 : AIR 2006 SC 3127 .................................. 23
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 464: (1984) 2 SCC 244................................. 14
Maneka Gandhi v. Union of India AIR 1978 SC 597, 1978 SCR (2) 621............................................ 23
National Human Rights Commission v. State of Gujarat & Ors, Writ Petiton (Crl.) No. 109 of 2003,
SC...................................................................................................................................................... 11
Naziranbai v. The State (Madhya Bharat High Court) C. Misc. C. No. 25 of 1956, D/- 7 -5 -1956. ... 21
Nitaben Nareshbhai Patel vs State Of Gujarat And Ors., AIR (2008) 1 GLR 884 ............................... 17
Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 ...................................... 9
R. Rajagopal vs State Of T.N, 1995 AIR 264, 1994 SCC (6) 632 ........................................................ 11
R.S. Raghunath v. State of Karnataka, AIR 1962 SC 81, p.89 : 1992 (1) SCC 335 ............................. 17
Rahul Gupta v. Union of India & Anr. W.P.(C) 457/2014 & CM APPL. 883/2014 ............................ 22
Rihannon Elizabeth Nixon v. Mrs. Vimla Devi CS No. 468/12 ........................................................... 21
RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628, p.631 : 1957 SCR 930 ........................ 16
Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594 ............................................ 13
Salmon v. Duncombe, (1886) 11 AC 627, p. 634 (PC) ........................................................................ 18
State of Madras v. V.G. Row, AIR 1952 SC 196: (1952) SCR 597 ..................................................... 11
State of West Bengal v. Sampat Lal, AIR 1985 SC 195: (1985) 1 SCC 317........................................ 14
Ujjam Bai v. State of U.P., 1993 (1) SCR 778 : AIR 1962 SC 1621 .................................................... 13
Union of India v. Association for Democratic Reforms, AIR 2002 SC 23: (2002) 5 SCC 294 ........... 14
Union of India v. Elphinstone Spinning and Weaving Co. Ltd., 2001 (1) JT SC 536 p.563 ................ 17
Vineet Narain v. Union of India, (1998) 1 SCC 226 (para 52): AIR 1998 SC 889 .............................. 10
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (para 11) ................................................................. 10
Vishaka v. Union of India, AIR 1997 SC 3011: (1997) 6 SCC 241 ..................................................... 14

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Vishnu Pratap Sagar Works Pvt. Ltd. v. Chief Inspector of stamp, U.P., AIR 1968 SC 102, p.104 1967
(3) SCR 920 ...................................................................................................................................... 16
Books Referred
Davies, Martin (2000). The Blackwell encyclopedia of social work. Wiley-Blackwell. p. 245. ISBN
978-0-631-21451-9 ........................................................................................................................... 18
Durga Das Basu, Shorter Constitution of India, 13 Edn Reprint 2006. ................................................ 10
Indian Constitutional Law, M.P. Jain, 5th Edn 2008, Pg. 1080 ............................................................. 18
Indian Constitutional Law, Prof. M.P. Jain, 6th Edn. .............................................................................. 9
Reverend Martin Luther King Jr., The Treasury of Great Speeches, Wilco Publishing 2008 .............. 12
SALMOND : Jurisprudence, 11th Edn, p.152.................................................................................... 16
Law Reports
BBC 2014 News Report, Ln 15, Pg.3 ................................................................................................... 12
Ministry of Woman and Child Development ........................................................................................ 12
Report No. 228, August 2009, Law Commission of India.................................................................... 10
Statutes Referred
Registration of Births and Deaths Act, 1969 ........................................................................................ 17

List of Abbreviation

SC SUPREME COURT
SCC SUPREME COURT CASES
CRPC THE CRIMINAL PROCEDURE CODE
I.P.C. INDIAN PENAL CODE
W.L.R. WEEKLY LAW REPORTS
Edn. EDITION
e.g. EXEMPLUM GRATIA (FOR EXAMPLE)

A.I.R. ALL INDIAREPORTER

U.O.I. UNION OF INDIA

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STATEMENT OF JURISDICTION

The Petitioner humbly invokes the jurisdiction of this Honble Supreme Court by filing a PIL
in the interest of justice under Article 32 of the Constitution of India.

THE PRESENT COMPILATION EXPOUNDS UPON THE FACTS, CONTENTIONS

AND ARGUMENTS IN THE PRESENT CASE.

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STATEMENT OF FACTS
BACKGROUND
1) Mr. James Butler is a British national and biological father of two babies born from a
surrogate mother, Ms. Nandita Khanna, an unmarried woman. His wife, Mrs. Nicole
Butler (Ivans) is also a British national.
2) Due to biological reasons, Mrs. Nicole was not in a position to conceive a child.
Upon consultations from a few gynaecologists, the Butlers, who were still desirous to
have their own child, were advised to undergo In Vitro Fertilization (IVF) process.
3) Thereafter, Mr. James made his best possible endeavour to get some beneficial
information through internet search and came to know about one, Dr. Chaddha's
Assisted Reproductive Technology Infertility Clinic at Delhi, India, which he thought
would be of great help and hence they both travelled to India.
4) In accordance of the same, Mr. James and Mrs. Nicole approached the said clinic and
initiated the process of treatment. The medical reports of the Fertility Tests
unfortunately revealed that it is impossible for Mrs. Nicole to reproduce ova.
5) As reproduction of ova was unattainable it ruled out the possibility to conceive even
with the help of a surrogate mother by using the sperm of Mr. Butler. During the
course of discussion with one Miss. Jenny Dsouza, friend of Mr. Butler, who was an
Indian citizen, volunteered to donate ova.
6) In furtherance of the same, the sperm of Mr. Butler was fertilized through a scientific
process with the ova and the fertilized embryo was implanted into the uterus of the
surrogate mother, Ms. Nandita Khanna.
7) The Butlers entered into a surrogacy agreement with Ms. Nandita Khanna. Ms.
Nandita was informed in detail about the method of treatment by the doctors and the
other terms and conditions after giving birth to the child. She had also agreed to
handover the child to the Butlers after giving birth to the child as stated in the
surrogacy agreement.
8) Moreover, the surrogate mother had also agreed that she would not claim any right
over the child and the biological parents would have legal obligation to accept their
child. Additionally, it was agreed between both the parties that, Ms. Nandita will
breast feed the child and look after the child till the Butlers were in India. On 4 th
January 2015, Ms. Nandita gave birth to two baby boys.

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9) The Butlers were overwhelmed to know that Ms. Nandita had delivered twins. Mr.
Butler then applied for registration of birth of the new born babies in the prescribed
form to Municipal Office, Delhi. The Municipal office issued a birth certificate as per
the provisions of the Registration of Birth and Deaths Act, 1969. However, the birth
certificate evinced Ms. Nandita Khannas name as the wife of Mr. Butler.
10) Mr. Butler brought it to the notice of the concerned officer of Municipal office that his
wife is Mrs. Nicole Butler and not Ms. Nandita Khanna. A copy of the surrogacy
agreement was also given to the Municipal Officer.
11) Thereafter, upon knowing the fact that the Children were born through IVF, the
Municipal office cancelled the certificate of birth issued to Mr. Butler. Mr. Butler
was shocked to know that the Birth certificates of his children had been cancelled
despite the fact that he revealed everything to the Municipal Office with a bonafide
intention.

JUDICIAL PROCEDINGS
12) Having left with no other option, the Butlers approached the Delhi High Court
challenging the cancellation of his childrens birth certificates abruptly by the
Municipal Office. It was contended in the writ petition that the interpretation given to
the word mother by the registrar of Registration of Birth and Deaths Act, 1969 is
against the Act itself and their children are entitled to get the Birth Certificate. The
proceedings of the said petition filed by the Butlers are pending before the Delhi High
Court.

APPLYING FOR PASSPORT

13) Since, the Butlers, though British nationals, presently are working in France and
desired to take their kids to France along with them. For the said purpose, they
applied for VISA from the Consulate of the France in India.
14) Since babies were born in India and are Indian citizens, petitioner applied for their
passport in India showing their names as Javier and Jack. Mr. Jamess name was
shown as father and surrogate mothers name as the mother.
15) The Passport Authorities refused to grant passport by mentioning that surrogate
mother cannot be given status of mother where the children took birth through a
process of IVF method. Since, either of the parents of the children are not citizens of

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India as per the requirements of the Indian Citizenship Act, 1955, they cannot be
granted passport as Indian Citizens.
16) The Petitioner also applied for Indian Citizenship to the concerned authorities but the
application was rejected by mentioning that they are not qualified to be the citizens of
India, as per Section 3 of the Indian Citizenship Act, 1955.

PRESENT SCENARIO
17) The Petitioner approached the Supreme Court against the order of the Central
Government and also requested the transfer of writ Petition filed by him in High
Court of Delhi since Mr. James Butler was the Petitioner in both the matters.
18) Supreme Court accepted the request of the petitioner and clubbed the both the
Petitions. Now the petition is lying in the Supreme Court.

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STATEMENT OF ISSUES

1) Whether the present petition under Article 32 of the Constitution is

maintainable as a Public Interest Litigation?

2) Whether the interpretation of the word Mother is against the Registration of

Births & Deaths Act and the Children are entitled to get Birth Certificates?

3) Whether the Children are qualified for Indian Citizenship and thereby
entitled to Passports?

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SUMMARY OF ARGUEMENTS

1) Whether the Present Petition is maintainable under Article 32 of the

Indian Constitution as a Public Interest Litigation?
Firstly, there is a vacuum in the Laws regulating surrogacy.
Secondly, this has violated the fundamental rights of stakeholders
of the surrogacy industry.
Thirdly, the Supreme Court has a duty to afford relief whenever a
violation of fundamental rights has been established.
Lastly, the Supreme Court has enough Powers and Precedents to
grant relief in the present case.
Therefore, the present petition is maintainable as a P.I.L.

2) Whether the interpretation of the word mother is against the

Registration of Births & Deaths Act and the Children of Petitioner
are entitled to get the Birth Certificate under the pertinent laws?
Firstly, the interpretation of the word mother is against the
object of the act.
Secondly, the respective authorities have not followed the Due
Process of Law.
Therefore, the interpretation of the word mother is against the
Act and the children are entitled to get Certificates.
3) Whether the children are qualified for citizenship and thereby
entitled to passports?
Firstly, they are Indian citizens by birth as per Sec.3 of the
Citizenship Act
Secondly, they are qualified for passports as per Sec.6 (2)(a)
Therefore, the children are entitled for citizenship as well as

passports.

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ARGUMENTS ADVANCED

WHETHER THE PRESENT PETITION UNDER ARTICLE 32 IS

MAINTAINABLE AS A PUBLIC INTEREST LITIGATION?

1) It is submitted that the present petition, filed under Article 32 as a Public Interest
Litigation [Hereinafter referred to as a P.I.L..], against the Union of India
[Hereinafter referred to as the Respondents], is maintainable before this Honble
Court. The Supreme Court has permitted any person acting bona fide and having
sufficient interest in maintaining an action for judicial redress for public injury to put
the judicial machinery in motion1. It can exercise its jurisdiction suo motu or on the
basis of a P.I.L2.
2) The instant case is a profound paragon of a private interest case that can also be
treated as a public interest case, since it unveils the vicissitudes of injustice prevalent
in the surrogacy industry of India. Hence, the court in furtherance of public interest
may treat this petition as a necessity to inquire into the affairs of the subject of the
litigation in the interest of justice and treat it as a P.I.L.3.
3) An essential component in regard to a P.I.L. is that it discards the traditional concept
of locus standi which means that only the person whose legal rights are violated can
approach the Court for redress.4 Justice P.N. Bhagwati has emphasized that public
interest litigation is the strategic arm of the legal aid movement, which is intended to
bring justice within the reach of the poor masses who constitute the low visible area
of humanity5.
4) The submissions for the maintainability of this P.I.L. can be vindicated in the
following parts:
a. Firstly, there is a vacuum in the Laws regulating surrogacy (A);
b. Secondly, this has violated the fundamental rights of stakeholders of the
surrogacy industry (B);

1
Janta Dal v. Chowdhury, H.S., (1992) 4 SCC 305 : AIR 1993 SC 892
2
Bodhisattawa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 (para 6 and 7) : AIR 1996 SC 922
3
Indian Banks Association, Bombay V. Devkala Consultancy Service, (2004) 11 SCC 1;
4
Indian Constitutional Law, Prof. M.P. Jain, 6 th Edn.
5
Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473

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c. Thirdly, the Supreme Court has a duty to afford relief whenever a violation of
fundamental rights has been established (C);
d. Lastly, the Supreme Court has enough Powers and Precedents to grant relief in
the present case (D).

(A) Vacuum in the Laws regulating Surrogacy

5) The sole object of Art.32 is the enforcement of fundamental rights guaranteed by the
Constitution.6 To achieve this object, by and large the Supreme Court has used its
jurisdiction under Art.32 in a creative manner. In particular, the Court has often used
Art.32 to lay down general guidelines having the effect of law to fill the vacuum till
such time the legislature steps in to fill the gap by making the necessary law.7
6) Strong reliance is placed upon the decision of Vishaka v. State of Rajasthan8 where
the Court enunciated, it is the duty of the executive to fill the vacuum by executive
orders because its field is coterminous with that of the legislature. And where even
the executive does not act, the judiciary must step in, in exercise of its
constitutional obligation under the abovementioned constitutional provisions to
provide a solution till the legislature acts to perform its role by enacting a proper
legislation to cover the field.
7) In light of these pronouncements, the Petitioner has approached the doors of this
Court to remedy the rampant injustice and human right violations present in the
surrogacy industry, primarily arising due to a void in the laws governing surrogacy.
This enormous vacuum in the legislation may contribute to a maladministration of
justice9 and hence the instant case seeks a proactive measure in pro bono publico for
maintenance of human dignity and rights in all the areas.10
8) The Law commission's 228th report11 stated a 'need for legislation to regulate
Assisted Reproductive Technology Clinics as well as rights and obligations of parents
as to surrogacy' which delineates that there is a parsimony in the laws and that
developing times require developing needs. There needs to be binding laws to govern
different vistas of the society. Like in the instant case, there is a need for laws

6
Durga Das Basu, Shorter Constitution of India, 13 Edn Reprint 2006.
7
Vineet Narain v. Union of India, (1998) 1 SCC 226 (para 52): AIR 1998 SC 889
8
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (para 11)
9
Haryana State Electricity Board v. M/S Hanuman Rice Mills Dhanauri & Ors. On 20 th August 2010
10
Guruvayur Devaswom Managing Commit. & Anr. v. C.K. Rajan & Others, Appeal (civil) 2148 of 1994,
Supreme Court.
11
Report No. 228, August 2009, Law Commission of India.

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governing surrogacy, otherwise children born through this process will be stateless
and would probably be classified as illegitimate.
9) Also, the ICMR guidelines have not been successful in regulating the industry and the
ART bill has remained untouched in the parliament for almost a decade. All this
points out to one thing, i.e. there is an imbroglio in the law, as in the laws are
inadequate12. Therefore, it is submitted that Supreme Court being the guardian of
justice and the sentinel qui vive13, should not let any such shortfalls in the law
become injustice, and must sustain the instant petition pro bono publico.

(B) Violation of Fundamental Rights of the stakeholders of surrogacy industry

10) The arguments can be bifurcated as follows: firstly, fundamental rights of
commissioning parents are endangered and secondly, the fundamental rights of
surrogate mothers have been violated.
a) Fundamental Rights of Commissioning parents have been violated and are
endangered
11) It is submitted that there has been a consistent violation of Article 21 of the
Constitution, due to the lacunae in laws regarding surrogacy. Even though the
Petitioner is a non-citizen of India, the Supreme Court has emphasized that even those
who come to India as tourists also have the right to live, so long as they are here,
with human dignity, just as the State is under obligation to protect the life of the
persons who are citizens of India.14
12) In the present case, the Petitioners wife has been deprived of the fundamental right of
motherhood,15 since the definition of the word mother in the Registration of Births
& Deaths Act is not wide in scope. Consequently, the Petitioners children have been
deprived of their fundamental right to life16, since they have not received a birth
certificate and other essential documents, which are the bare legal necessities of a
civilized life. Finally, the Petitioner himself has been deprived of his fundamental
right of fatherhood, in spite of being biologically related to his Children. All these
violations are proof enough of the malignant void present in the current laws and the
need for guidelines of the Supreme Court. Such a case is a fine example of violations
in fundamental rights that can be caused by a vacuum in the legislation. It also

12
National Human Rights Commission v. State of Gujarat & Ors, Writ Petiton (Crl.) No. 109 of 2003, SC
13
State of Madras v. V.G. Row, AIR 1952 SC 196: (1952) SCR 597
14
Chairman, Railway Board v. Chandrima Das
15
R. Rajagopal vs State Of T.N, 1995 AIR 264, 1994 SCC (6) 632
16
Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 at 753: (1981) 1 SCC 608

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highlights the endangered other situation of non-citizens as injustice anywhere, is a

threat to justice everywhere17.
b) Fundamental Rights of surrogate mothers have been violated.
13) Furthermore, even the rights of the surrogate mothers are not being protected by any
legislation. The surrogacy industry is estimated to be worth more than US$500 billion
a year and growing18. Nevertheless, there are no laws governing the remunerations19
of these surrogate mothers and the industry is running like a racket.20
14) In a like manner, the ICMR guidelines have failed in instilling order in the industry.
According to a report21 conducted by the NGO, Centre for Social Research, the ICMR
guidelines suggest maximum three IVF sessions for a surrogate mother to become
pregnant for a particular commissioning parent, however violations take place as
surrogate mothers usually are poor, illiterate or semi-literate, in need of immediate
fortune and not in a position to understand the medical procedures their bodies are
subjected to. Also, surrogate mothers are not given a copy of the written contract
which is signed between them, the commissioning parents and fertility physicians
because of which they are not even aware of the clauses of the contract.
15) From a perusal of the above statistics, it is manifest that the surrogate mothers have
been victims of forced labour, since the word force is construed to include not only
physical or legal force, but also force arising from the compulsion of economic
circumstances which leaves no choice of alternatives to a person in want and compels
him to provide labour or service even though the remuneration received for it is less
than the minimum wage.22 Hence, the present indignity and drudgery suffered by the
surrogate mothers showcases an explicit violation of Article 21, as well as, Article 23.
16) Therefore, the present P.I.L. must be entertained to remedy the rampant injustice
suffered by the stakeholders of the surrogacy industry and reinstate their rights.

17
Reverend Martin Luther King Jr., The Treasury of Great Speeches, Wilco Publishing 2008
18
BBC 2014 News Report, Ln 15, Pg.3
19
Ministry of Woman and Child Development
20
Baby Manji Yamada vs Union Of India & Anr, Writ Petition (C) No. 369 Of 2008
21
Time of India Site, Last accessed 20-Feb-16, Can be seen:
http://timesofindia.indiatimes.com/india/Unregulated-surrogacy-industry-worth-over-2bn-thrives-without-legal-
framework/articleshow/21131823.cms
22
People's Union For Democratic Rights & Ors v. Union Of India & Ors

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(C) Duty of the Court to Afford Relief where Violation of Fundamental Rights
Has Been Established
17) Clause (1) of Article 32 guarantees the right to move to the Supreme Court for
appropriate writs for the purpose of enforcing the Fundamental Rights included in
Part III. In other words, the right to move to the Supreme Court where a Fundamental
Right has been infringed is a Fundamental Right in itself.23 Thereby, it is not merely
the right of an individual to move to the Supreme Court, but also the duty of the
Supreme Court to enforce those guaranteed rights.24
18) Likewise, the Petitioner in the present case has moved to this Honble Court in public
interest after a long period of physical and emotional anguish, to receive apposite
relief for the infringement of the fundamental rights of all the stakeholders in the
surrogacy industry. The present P.I.L. therefore cannot be dismissed on grounds of an
adequate alternative remedy available to the petitioner25 or that an alternative forum
must be approached.
19) The Supreme Court is the protector and guarantor of Fundamental Rights26 and it
cannot consistently, with the responsibility so laid upon it, refuse to entertain
application such as the instant case, where two major groups the commissioning
parents and the surrogate mothers have been essentially denuded of their
fundamental rights. The present P.I.L. involves a substantive question of the Right to
Life and the Right to Personal liberty and cannot be merely rejected on any procedural
grounds.27

23
Kochunni v. State of Madras, AIR 1959 SC 725 (729) : 1959 (2) Supp. 316
24
Daryao v. State of U.P., AIR 1961 SC 1457 (1461) : 1962 (1) SCR 574
25
Ujjam Bai v. State of U.P., 1993 (1) SCR 778 : AIR 1962 SC 1621
26
Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594
27
Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1974) 2 SCC 348

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(D) Supreme Court has enough Powers and Precedents to grant relief in the
present case
20) The Supreme Court derives its constitutional powers to fill a void in the laws by
reading Art.32 with Art.142 and Art.141. Article 144 mandates all authorities to act in
aid of Court orders.28 An active use of these powers conferred upon this Court by the
Constitution has led to a series of decisions that have been instrumental in
maintaining the standards of equity and justice. This is primarily because directions
under Art. 32 have the force of law and are quasi-legislative in nature.29
21) In Union of India v. Association for Democratic Reforms30, the Supreme Court
reiterated, it is well settled that in case when the Act or Rules are silent on a
particular subject and the authority implementing the same has constitutional or
statutory power to implement it, the court can issue directions or orders on the said
subject to fill the vacuum or void till the suitable law is enacted. Further, the Apex
Court also held that it can issue directions, in appropriate cases, even to private
persons for the enforcement of the petitioners Fundamental Rights.31
22) Taking account of these decisions, the Petitioner contends that there is an urgent need
for the Court to meet the exigencies of the unregulated surrogacy industry by issuing
directions of an exhaustive nature. To substantiate the same, this Court may refer to
its own judgements in previous cases with similar issues.
23) In Lakshmi Kant Pandey v. Union of India32, there was a similar predicament facing
the Supreme Court, wherein there were no laws governing the adoption of Indian
children by foreigners. Subsequently, the Court laid down specific guidelines to be
followed, that supplanted the vacuum in the incumbent period. Similarly, the Supreme
Court also laid down guidelines to regulate and revamp the system of blood banks in
the country in the P.I.L. filed by Common Cause v. Union of India33. Finally, the
Supreme Court also accepted the request of issuing guidelines in Vishaka v. State of
Rajasthan34 to remedy the sexual harassment faced by women at work places, which
clearly was violative of Arts. 14, 15, and 21 of the Constitution. In all the cases
mentioned before, the unregulated industries and spheres of society were given a

28
Delhi Electricity Supply Undertaking v. Basanti Devi, AIR 2000 SC 43, 49 : (1999) 8 SCC 229
29
State of West Bengal v. Sampat Lal, AIR 1985 SC 195: (1985) 1 SCC 317
30
Union of India v. Association for Democratic Reforms, AIR 2002 SC 23: (2002) 5 SCC 294
31
Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922, at 941: (1995) 3 SCC 42
32
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 464: (1984) 2 SCC 244
33
Common Cause v. Union of India, AIR 1996 SCC 929
34
Vishaka v. Union of India, AIR 1997 SC 3011: (1997) 6 SCC 241

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sense of order and discipline via the guidelines of the Court, so that no one is deprived
of their Fundamental Rights due to a vacuum in the legislation.
24) Another fact worth underpinning in here is that the surrogacy industry is an essential
subset of the medical institutions of the nation. Being so, it is of paramount essence to
ensure that the practices under this industry, and the services rendered by the
members of this industry, in consonance with all the requisite standards of ethics,
propriety and Fundamental Rights.

Therefore, the Petitioner humbly submits that the instant P.I.L. is maintainable before this
Court, since it sheds light on the deplorable status quo of the surrogacy industry.

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WHETHER THE INTERPRETATION OF THE WORD MOTHER IS

AGAINST THE REGISTRATION OF BIRTH & DEATH ACT AND THE
CHILDREN ARE ENTITLED TO GET BIRTH CERTIFICATES?

25) The huge void in the laws governing surrogacy have had a domino effect on all the
laws governing the fundamental aspects of life, of which the stakeholders of the
surrogacy industry - particularly the commissioning parents and their surrogate
children have suffered the most. The present case is a suitable instance of such a
suffering. The ambiguity of the interpretation of mother in the Registration of Births
and Deaths Act [hereinafter referred to as the Act] has caused a huge
misinterpretation and thus inconclusiveness in regard to the childrens entitlement of
birth certificates
26) Furthermore, it is contended by the Petitioner that commissioning parents are equally
entitled to joys of parenthood. Likewise, it is also asserted that their children are
entitled to birth certificates with the name of their commissioning parents and the
interpretation of the word mother is patently against the Act.
27) The contentions of the Petitioner can be justified in two basic limbs: firstly, the
interpretation of the word mother is against the object of the act and secondly, the
respective authorities have not followed the due process of law.

(A) Interpretation of mother is against the Registration of Births and Deaths

Act itself
28) To establish that the interpretation of the word mother is against the Act itself, it
would be helpful to resort to certain fundamental rules of statutory interpretation.
Every statute is an edict of the legislature35 and the conventional way of interpreting
or constructing a statute is to seek the intention of its maker. A statute is to be
construed according to the intent of them that make it36 and the duty of the
judicature is to act upon the true intention of the legislature the mens or sentenia
legis.37 The intention of the Legislature in here assimilates two aspects: in one aspect
it carries the concept of meaning, i.e what the words mean and in another aspect, it

35
Vishnu Pratap Sagar Works Pvt. Ltd. v. Chief Inspector of stamp, U.P., AIR 1968 SC 102, p.104 1967 (3)
SCR 920
36
RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628, p.631 : 1957 SCR 930
37
SALMOND : Jurisprudence, 11th Edn, p.152.

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conveys the concept of purpose and object or the reason and spirit pervading
through the statute.38
29) Moreover, the Supreme Court39 has asserted, that when the question rises as to the
meaning of a certain provision in a statute, it is not only legitimate but proper to read
that provision in its context. The context here means, the statute as a whole, the
previous state of the law, other statutes in pari materia, the general scope of the
statute and the mischief that is was intended to remedy.40
30) Therefore, keeping in mind these fundamental principles of intention and context
laid down by the Supreme Court, it is argued that the definition of the word mother
is no longer meeting the intention of the legislature and the provision has defeated
the object of the Act, which is to ensure the sanctity of births and deaths and see to it
that the births and deaths registers are correctly maintained. 41 This is because it
excludes the entire class of commissioning parents from its contextual scope and
deprives them of their fundamental right to parenthood.
31) It is humbly put forth before this Honble Court, that Section 2 (d) defines Live-
Birth42 as:
the complete expulsion or extraction from its mother of a product of
conception, irrespective of the duration of pregnancy, which, after
such expulsion or extraction, breathes or shows any other evidence
of life, and each product of such birth is considered live-born of the
Registration of Births & Deaths Act.

Upon a quick perusal of this definition, it is stated that the definition encompasses
only biological mother and not mother per se.

32) By interpreting the meaning of mother to its biological sense only, the statutory
construction would contribute to a failure in recording the births of babies born to the
commissioning mothers in process of surrogacy, who are not biologically related to
their children, like in the Petitioners case. Moreover, gestational mothers must not be
given the status of mother since they are just a commercial or altruistic medium of
assistance to the commissioning parents. The status of mother can only be held by

38
District Minister Officer v. Tata Iron and Steel Co., AIR 2001 SC 3134, pg. 3154
39
Union of India v. Elphinstone Spinning and Weaving Co. Ltd., 2001 (1) JT SC 536 p.563
40
R.S. Raghunath v. State of Karnataka, AIR 1962 SC 81, p.89 : 1992 (1) SCC 335
41
Nitaben Nareshbhai Patel vs State Of Gujarat And Ors., AIR (2008) 1 GLR 884
42
Registration of Births and Deaths Act, 1969

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the commissioning mothers, who actually develop the social and emotional bond with
the child.
33) Parenting is the process of promoting and supporting the physical, emotional, social,
financial, and intellectual development of a child from infancy to adulthood.
Parenting refers to the aspects of raising a child aside from the biological
relationship.43 Along the same lines, the definition of mother given in Wests legal
thesaurus44 states that Mothers are women who inhabit or perform the role of bearing
some relation to their children, who may or may not be their biological offspring. Or
A Lady who brings up a child with all her Affection & Care. This simply means
that mother is not only the bio-logical relation but more significantly, the social.
34) The Courts must therefore reject the construction which will defeat the plain intention
of the legislature even though there may be some inexactitude in the language used. 45
The interpretation of the word mother must be augmented to include within its
contextual scope the entire class of commissioning parents, who may or may not be
related to the children biologically, since they are the ultimate bond-makers and care-
takers of the children. In doing so, the object of the said Act would be better achieved.
35) Therefore, it is submitted that squaring down the interpretation of the word mother
in the said Act would be defeating the object of the Act and hence against the Act.

(B) Respective Authorities have not followed the Due Process of law.
36) It is submitted that the respective authorities have not followed the due process of
law. Due process has two aspects. Substantive due process envisages that the
substantive provisions of a law should be reasonable and not arbitrary. Procedural due
process envisages a reasonable procedure, i.e, the person affected should have the fair
right of hearing which includes four elements (i) notice, (ii) opportunity to be heard,
(iii) an impartial trial and (iv) an orderly procedure.46
37) Likewise, it is contended that the Registrar has flippantly disregarded the due process
of law, which can be explained in two parts: Firstly, the Registrar has not followed
the substantive due process of law and Secondly, the Registrar has also ignored the
Procedural due process of law.

43
Davies, Martin (2000). The Blackwell encyclopedia of social work. Wiley-Blackwell. p. 245. ISBN 978-0-
631-21451-9
44
Assam Railways & trading Co.ltd V. IRC, 1935) AC 445;
45
Salmon v. Duncombe, (1886) 11 AC 627, p. 634 (PC)
46
Indian Constitutional Law, M.P. Jain, 5th Edn 2008, Pg. 1080

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(a) Registrar has not followed the Substantive Due Process of Law
38) Strong Reliance is placed on the case of Jan Balaz Vs. Anand Municipality47, where
the Supreme Court has strictly articulated to follow the guidelines given by the Indian
Council of Medical Research till the time the ART Bill & Rules, 2008 Become a Law.
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). The
Indian Law recognizes the Intended mother only as the legal mother in surrogacy
arrangements.
39) 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. Additionally, 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
commissioning parents. 3.5.5 Provides that the surrogate mother shall relinquish in
writing all the parental rights over the child.
40) However, in the present case, the Registrar has not followed these statutory
guidelines, in spite of having the knowledge of the Petitioners medical history. It is
the right of Petitioner and his wife to get the birth certificate of their children with
their names as parents, under the applicable guidelines relating to the matter of
surrogacy. Hence the Registrar has committed a blatant violation of the substantive
due process of law by ignoring the statutory guidelines.
(b) Registrar has ignored the Procedural due process of law
41) According to Delhi Registration of Birth & Death Rules, 1999; Rule 14 (1) states that
if it is reported to the Registrar that a clerical or formal error has been made in the
register or if such error is otherwise noticed by him and if the register is in his
possession, the Registrar shall enquire into the matter and if he is satisfied that any
such error has been made, he shall correct the error as provided in section 15 and shall
send an extract of the entry showing the error and how it has been corrected to the
State Government or the officer specified by it in this behalf.

47
Jan Balaz Vs. Anand Municipality & Anr; AIR 2010 Gujarat HC 21

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42) Nevertheless, in the instant case, the Registrar of the Births & Deaths Act
straightaway cancelled the birth certificate instead of correcting & reissuing the
Certificate in the name of the parents of those children. Although this may prima facie
seem in conformance with the rules, by cancelling the certificates arbitrarily instead
of reissuing corrected ones, the Registrar has clearly not followed the procedural due
process with all propriety and natural justice. Hence, the Registrar has violated the
procedural due process of law, since it has not resorted to the rational procedure of
reissuing correct certificates, but instead has unreasonably cancelled the issued ones.

Therefore, it is humbly submitted that the interpretation of the word mother given by the
registrar is against the Act itself and the children are entitled to get the birth certificates as
per the Due Process of Law

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WHETHER THE CHILDREN ARE QUALIFIED FOR INDIAN

CITIZENSHIP THEREBY ENTITLED FOR A PASSPORT

43) It is submitted that the children are certainly qualified for citizenship as well as
passport. This shall be justified in two parts: Firstly, the children are qualified for
citizenship and secondly, the children are entitled for passport.

(A) Children Are Qualified for Citizenship

44) The cancellation of the citizenship by the Municipal Officer as per Section 3 of the
Citizenship Act, 1955 is not valid.48 It was stated by the officials that even though the
children were born in India, neither of the parents are citizens of the country therefore,
the children cannot get citizenship.
45) So what do we classify these kind of children as? Who is the mother of these children,
is it the ova donor or the gestational surrogate? What is their nationality? Can we
categorize them as legal orphans or stateless or illegitimate?
Pigeonholing children like these as stateless or illegitimate in such an ostensible
manner will not only bring about disrepute to the legal system in India but also spur a
sense of distrust and hatred in the justice system seeing that there was no justice
actually done.
46) As established by the golden words of Nelson Mandela, who said, To deny people
their human rights is to challenge their very humanity. We should not set such an
example that might lead to maladministration of justice seeing that it is the laws that
are inadequate and that there was no fault on the part of the Butlers.
47) Commercial surrogacy in India is not illegal. The Law Commission of India in its
228th Report on Need for legislation to regulate Assisted Reproductive Technology
Clinics as well as rights and obligations of parents to a surrogacy has recognized
surrogate children to be the legitimate children of the commissioning parents without
there being any need for adoption or even declaration of guardian.49
48) Mother-Child relationship also plays a vital role in brandishing the emotional bond
thus making it possible for the surrogate mother to refrain from relinquishing the child
that she bore and nourished. Thus there are various problems be it legal, emotional or
ethical.

48
Naziranbai v. The State (Madhya Bharat High Court) C. Misc. C. No. 25 of 1956, D/- 7 -5 -1956.
49
Rihannon Elizabeth Nixon v. Mrs. Vimla Devi CS No. 468/12

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49) Even if the children were to be considered illegitimate, the children are born in India
to an Indian national and are thereupon entitled to get citizenship by birth as per
Section 3(1)(c)(ii) of the Citizenship Act, 1955 since one of their parent is an Indian
citizen.
50) Section 3 Citizenship by Birth (1) Except as provided in sub-section (2), every
person born in India,--
(c) on or after the commencement of the Citizenship (Amendment)
Act, 2003, where

(ii) one of whose parents is a citizen of India and the other is not an
illegal migrant at the time of his birth.

51) Therefore, since the children were born to an Indian woman, i.e. Ms Nandita Khanna
and the donor of the ova is also an Indian national, Miss Jenny DSouza, the children
are, by heredity as well as nationality, an Indian.
52) Emphasis to the expression every person born and particularly to person and
born. The Blacks Legal Dictionary defines the word born as an act of being
delivered or expelled from mothers body whether or not placenta has been separated
or cord cut.
53) The children, thus, satisfy the elements of Section 3(1)(c)(ii) of the Citizenship Act,
1955 and therefore are qualified to get citizenship under the said act.

(B) Children Are Entitled To Passport

54) The Passport authorities refused to grant passport to them under Section 6(2)(a) of the
Passports Act, 1967.The rudiments of the Passport authorities dissent to grant is
unjust since every citizen have the right to travel abroad.50 Passport cannot be denied
to the children since it will lead to a violation of Article 21 of the Constitution.
55) A strong reliance is placed in the case of Maneka Gandhi. When Manekas passport
was impounded by the Central Government under Section 10(3)(c) of the Passports
Act, in the interest of the general public, she filed a writ petition challenging the order
on the ground of violation of her Fundamental Rights under Article 21. One of the
major grounds of challenge was that the order impounding the passport was null and
void as it had been without affording her an opportunity of being heard in her defence.

50
Rahul Gupta v. Union of India & Anr. W.P.(C) 457/2014 & CM APPL. 883/2014

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56) According to Justice Krishna Iyer, the spirit of man is at the root of Article 21;
personal liberty makes for the worth of the human person and Travel makes liberty
worthwhile. Thus, no person can be deprived of his right to go abroad except
according to the procedure established by law.
57) Section 6(2)(a) of the Passports Act, 1967 states that passports can be denied if the
applicant is not a citizen.
58) Section 6. Refusal of passports, travel documents, etc.
(2) Subject to the other provisions of this Act, the passport authority shall
refuse to issue a passport or travel document for visiting any foreign
country under clause (c) of sub-section (2) of section 5 on any one or
more of the following grounds, and on no other ground, namely51:
(a) that the applicant is not a citizen of India.
59) We have already established that the children are born to in India to an Indian national
and are citizens of India under Section 3(1)(c)(ii) of the Citizenship Act, 1955.52
60) If the passport is still denied, then there will be a critical dilemma in the
consummation of justice. As John F. Kennedy said, The rights of every man are
diminished when the rights of one man is threatened. Therefore, it is asserted that the
children are entitled to get Passports.

Therefore, it is humbly submitted before this Honble Court that in ethical, moral and
equitable sense, the children are qualified for and entitled to Citizenship and Passport.

51
Maneka Gandhi v. Union of India AIR 1978 SC 597, 1978 SCR (2) 621
52
Kuldeep Nayar v. Union of India & Ors. (2006) 7 SCC 1 : AIR 2006 SC 3127

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PRAYERS

In the light of the issues raised, arguments advanced & authorities cited the Petitioner humbly
prays that may this Honble Court be pleased to:

1) Accept the P.I.L. filed by the Petitioner under Art.32 of the Constitution.
2) Issue necessary guidelines to regulate the Surrogacy Industry and fill the Vacuum in
the existing laws.
3) Direct the respective authorities to augment the interpretation of the word mother to
include commissioning parents within its contextual scope and issue birth certificates
to the Petitioners children.
4) Direct the respective authorities to grant citizenship to the Petitioners children and
thereby grant them passports.
5) Any other order in the interest of justice, equity and good conscience that this Honble
Court deems fit.

Rest the Petitioner leaves it to this Honble Courts wisdom & fine sense of
judgement.

Date: ______________________2016

Place: Delhi

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