Respondent - 06-10-19

2ND VITSOL NATIONAL MOOT COURT COMPETITION ON SURROGACY LAW
TABLE OF CONTENTS
SERIAL NO. CONTENTS PAGE NO.
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INDEX OF AUTHORITY
AUTHORITIES REFERRED
MEMORIAL ON BEHALF OF RESPONDENTS

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1. Abigail L. Perdue, “For Love or Money: An Analysis of the Contractual Regulation of

Reproductive Surrogacy”, 27 J. Contemp. Health L. & Pol'y 279 (2011). (Available at:
http://scholarship.law.edu/jchlp/vol27/iss2/3).
2. Bach, Kathleen, “Research Guide: Surrogate Motherhood”. 1988. 46p. William S Hein &
Co.
3. Buchanan, Jim, “Regulating the Baby Makers: From Baby M to the Present, a
Bibliography”, 1991. 28p. Vance Biblios. 31ST ALL INDIA INTER-UNIVERSITY MOOT
COURT COMPETITION – 2015 -MEMORANDUM FOR THE DEFENDANT - Page VI
4. Chitty On Contracts (Sweet and Maxwell, 25th Edition, Vol.1 & 2) (1983).
5. Field, Martha A, “Surrogate Motherhood”, 1988. 224p. Harvard University Press.
6. Kari Points, “Commercial Surrogacy and Fertility Tourism in India: The Case of Baby
Manji”, Case Studies in Ethics 2 dukeethics.org. (Available at: http://kenan.ethics.duke.)
7. Margaret Wahl, Amy Labbe and Miriam Davidson, “Great Expectations: Pregnancy and
Childbirth with Neuromuscular.” (Available at: athttps://www.mds.org/sites/Pregency)
8. Mukhopadhyay, P., “Surrogacy Law on the Anvil in India”, One World South Asia,
October 18, 2008.
9. Mulla, Indian Contracts and Specific Reliefs Act, (Lexis Nexis Butterworths India, 13th
Edition, 3rd Reprint, New Delhi) (2008).
10. Pretorius, Deiderika, “Surrogate Motherhood: A Worldwide View of the Issues”, 1994.
262p. Charles C Thomas.
11. Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson, “Parenting and Child
Development in Adoptive Families: Does Parental Sexual Orientation Matter?” Applied
Developmental Science Journal, 164–178, 2010, Psychology Press.
12. Richardson, Herbert ed., “On the Problem of Surrogate Parenthood: Analyzing the Baby
M Case”, 1987. 144p. Edwin Mellen Press.
13. Shalev, Carmel, Birth Power: “The Case for Surrogacy”. 1989. 224p. Yale University
Press.

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14. Shannon, Thomas A, “Surrogate Motherhood: The Ethics of Using Human Beings”, 1988.
212p. Crossroad.
15. Sloan, Irving J, “Law of Adoption & Surrogate Parenting”, 1988. 160p. Oceania.
16. “Surrogate Motherhood- Ethical or Commercial”, Centre for Social Research (CSR),
Delhi. 17. Treitel, G. Law of Contract (Sweet and Maxwell, 8th Edition, India) (2006).
17. Surrogacy in India, A Law in The Making – Revisited, by Anil Malhotra and Ranjith
Mlhotra, Universal Law Publishing, 2nd Edition. 2016.
CASES REFERRED
1. Amy Antoinette McGregor & Anr v. Directorate of family welfare 2013, HC Delhi.
2. A.R. Antulay v. R.S. Nayak & Anr, 1988 AIR 1531, 1988 SCR Supl. (1) 1.

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3. Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532
(PC).
4. A. Venkatasubbaiah Naidu v. S.Chellappan (2000) 7 SCC 695.
5. Baby Manji Yamada v. Union Of India & Anr (2008) 13 SCC 518.
6. Bareja Automobiles Pvt. Ltd v. State Of Haryana And Others CWP NO. 2297 of 2007.
7. Central Inland Water v. Brojo Nath Ganguly & Anr, 1986 AIR 1571.
8. CIT v. Chhabil Das Agarwal (2014) 1 SCC 603.

9. CIT v. Vijay Bhai N. Chandrani (2013) 357 ITR 13 SC.
10. Court On Its Own Motion v. Mahender Singh Manan & Ors (2017) 2 SCC 583.
11. Dayabhai Poonambhai Patel v. The Regional Transport Authority, 1951 Cri LJ 1305.
12. Delhi High Court Bar Association v. Govt. Of Nct Of Delhi & Anr (2013) HC Delhi.
13. Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 AIR 101.
14. Dr. Normann Witzleb v. Jyotshana Mandal & Anr,(2011) CS 143/11.
15. Haryana State Industrial Corporation v. Cork MFG.co., AIR 2008 SC 56.
16. India Tourism Development v. Miss Susan Leigh Beer (2014)

CM.APPL.NO.15966/11
17. Indira Nehru Gandhi v. Shri Raj Narain & Anr 1975 AIR 1590.
18. Jane Antony v. V.M. Siyath, MACA.No. 1324 of 2004 Kerala High Court.
19. Jan Mahomed Abdulla Datu v. Datu Jaffar, (1913) 15 BOMLR 1044.
20. Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
21. Joseph Shine v. Union of India, (2018) W.P. 194/2017.

22. Justice K.S. Puttaswamy(Retd) v. Union Of India (2018) 10 SCC 1.
23. Kerala SEB v. Kurien E. Kalathil (2000)6 SCC 293.
24. K.S. Rashid & Sons v. Income Tax Investigation Commission (1954) 25 ITR 167.
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25. K.S. Venkataraman and Co. v. State of Madras, (1966) 60 ITR 112.
26. Life Insurance Corporation of ... v. Escorts Ltd. & Ors, 1986 AIR 1370.
27. L.L. Sudhakar Reddy v. Sate of A.P. (2001) 6 SCC 634.

28. Madhya Pradesh v. Income Tax Officer, (1965) 57 ITR 637 SC.
29. Mahendra Manilal Nanavati v. Sushila Mahendra Nanaati, 1965 AIR 364.
30. Malay Kumar Ganguly v. Sukumar Mukherjee & Ors (2009) C.A.No.2867 OF 2012.
31. Maqsoodan v. State of U.P. AIR 1983 SC 126.
32. Mr. Hassan Ezadichamkhorami v. Mrs. Radha, 2011 DC Delhi.
33. Mrs. Mansa Devi v. Makhar AIR 1936 Pesh 207.
34. N.A. Shareefa v. State Of Kerala (2013) W.P.No. 19431/12.
35. Neville v. London Express Newspaper Ltd. 1919 AC 368.
36. N.T. Veluswami Thevar v. G raja Nainar AIR 1959 SC 422.
37. Pawan Kumar v. State of Haryana (2003) 11SCC 241.
38. Pratap Singh v. State of Haryana (2002) 7 SCC 484.
39. Probir Kumar Misra v. Ramani Ramaswamy (2009) C.A.No. 11/09.
40. Rajasthan SRTC v. Krishna Kant (1995)5 SCC 75.
41. Rama Pandey v. Union of India & Ors 2015 Delhi HC.
42. Ram Prasad v. District Judge, Gorakhpur, AIR 1920 All 89.
43. Re Mc Grath (infants) (1893) 1 CH 143.
44. Rihannon Elizabeth Nixon v. Mrs Vimla Devi (2013) CS.No. 468/12.
45. Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr. (2011) 12 SCC 554.
46. Rustom Cavasjee Cooper v. Union Of India, 1970 AIR 564, 1970 SCR (3) 530.
47. Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1.
48. Secy. Of State v. Mask and Co. AIR 1940 PC 105 (2011) 14 SCC 337.
49. Seth Chand Ratan v. Pandit Durga Prasad. (2003) 5 SCC 399.
50. Smt. Sadhna Agrawal v. State Of Chhattisgarh (2017) W.P. 4927 of 2016.
51. State of M.P. v. Desh Raj, (2004) 13 SCC 199.
52. State Of Orissa & Other v. The Tltaghur Paper Mills Company, 1985 AIR 1293.
53. State of U.P. v. Mohd Nooh AIR 1958 SC 86.
54. S.T. Muttusami v. K.Natarajan (1988) 1 SCC 572.
55. Thansingh Nathmal v. Supdt. Of Taxes, AIR 1964 SC 1419.
56. Thirty Hoshie Dolikuka v. Hoshiarpur Shavaksha Dolikuka, AIR 1982 SC 1276.

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57. Titagarh Paper Mills v. State of Orissa (1983) 2 SCC 433.

58. Union Of India v. T.R. Verma, AIR 1957 SC 882.
59. Varsha Laxman Deshpande v. The Municipal Commissioner (2014) Cri. W.P.
NO.4164 of 2013.
STATUTES REFERRED AND OTHER AUTHORITIES
1. Circular No.: 5/10/8/2008-RHN, Indian Council of Medical Research, dated:

27/10/2015.
2. Companies Act, 1956
3. Guardianship and Wards Act, 1890.
4. Hindu Minority and Guardianship Act, 1956.
5. Indian Constitution Act, 1950.
6. Indian Contract Act, 1972.
7. Information Technology Act, 2000.
8. Law Commission Of India, Report No.228, Need For Legislation To Regulate
Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of
Parties To A Surrogacy, (August 2009).
9. Law Commission Of India, Report No.257, Reforms In Guardianship And Custody
Laws In India, (May 2015).
10. Law Commission Of India, Report No.257, Reforms In Guardianship And Custody
Laws In India, (May 2015).
11.
WEBBSITES REFERRED
1. http://icmr.nic.in/art/art_clinics.html
2. http://scholarship.law.edu/jchlp/vol27/iss2/3
3. www.lawyerservices.in
4. https://indiankanoon.org
5. https://www.boloji.com/articles/8584/mother-an-object-of-reverence
6. http://www.legalservicesindia.com/article/2310/Problems-And-Issues-of-Surrogate-
Mother-and-Her-Child.html
7. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5496060/
8. http://news.advisen.com/documents/AMX/contify_.xml
9. https://www.equalityhumanrights.com/en/what-european-convention-human-rights

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LIST OF ABBREVIATIONS
AIR ALL INDIA REPORT
Anr ANOTHER
Art ARTICLE
& AND
Govt GOVERNMENT
HC HIGH COURT
Hon’ble HONOURABLE
LCR LAW COMMISSION REPORT
Ors OTHERS
¶ PARAGRAPH
SC SUPREME COURT
SCC SUPREME COURT CASE
Sec SECTION
UOI UNION OF INDIA
v. VERSUS
A.P ANDRAPRADESH
U. P UTTARPRADESH
ART ASSISTED REPRODUCTIVE TECHNOLOGY
ITR INCOME TAX REPORTER
IVF IN VITRO FERTILISATION
M.P MADYA PRADESH

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EHRC EVVY HOSPITAL AND RESEARCH CENTRE
ECHR EUROPEAN CONVENTION ON HUMAN RIGHT
ICMR INDIAN CONCIL OF MEDICAL RESEARCH

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STATEMENT OF JURISDICTION
CASE CONCERNING THE SURROGACY LAW
Ms. X Petitioner
V.
Mr. and Mrs. Y Respondents
The Hon’ble High Court is not vested with jurisdiction, to hear the present matter under
Art.226 of the Constitution of Indiva.
Art. 226. Power of High Court to issue certain writs:
(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
IN THE HIGH COURT OF INDIVA

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STATEMENT OF THE FACT
1. In the present case, Mr. and Mrs. Y were desirous of having a child through surrogacy
process, as a result of infertility issues that plagues both of them. Aware of the changes
brought about in the Surrogacy Act, 2016, they approach their blood relatives to act as the
surrogate mother. They are unable to convince blood relatives to carry their child.
2. This means that they are not certain on who the surrogate mother is, and are willing to
provide for all expenses towards the health and welfare of the surrogacy mother. The
reputation of EHRC attracted Mr. and Mrs. Y. They got in touch with EHRC through Ms. X,
an adopted child of Mr. Y‟s mother’s first cousin. Mr. and Mrs. Y then speak to a series of
doctors at the EHRC before flying down from Australia for an appointment with Dr. K. Dr. K
and Mr. and Mrs. Y speak, negotiate and agree on the terms and conditions as part of the
Surrogacy Agreement.
3. The couple was specific that the surrogate will not work during the entire duration of
pregnancy, beginning from the success of the IVF up to six months post-delivery.
4. Ms. X, aged about 33 years old and an employee of EHRC was approached by Dr. K. to
carry the child for Mr. and Mrs. Y. Ms. X shows her willingness to be the surrogate mother.
5. As Ms. X is unable to read English, the terms were read out to her and translated wherever
she asked for, in her vernacular language. She clarifies various details regarding the
agreement including the terms relating to cost and risk involved in the surrogacy. After
finalizing the contractual terms and conditions both parties signed the agreement.
6. Both parties then approach the appropriate authority under the Surrogacy Act, 2016. The
surrogate mother for an eligibility certificate, which is granted within thirty days; and the
intending couple for a certificate of proven infertility in favor of both of them from the
District Medical Board in Delta, Indiva, which stands granted too.

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7. Once the IVF rounds commence, good news arrives fast as the IVF is successful in the first
round. Three months thereafter, Ms. X goes on unpaid leave from her employer, till childbirth
and six months thereafter as per the terms of the agreement.
8. Early on in the pregnancy, Ms. X grows attached to the baby, emotionally, as the child is
physically related to her. In her fifth month of pregnancy, she expressed her request of being
unable to continue with the pregnancy as a result of mental health issues, to Dr. K. She said
that she does not want to continue with the pregnancy, and wants an abortion. On probing
further, Dr. K was able to bring out the real reason that Ms. X wants to keep the baby and the
excuse of having an abortion was only to get away from the hospital and the city to raise the
baby by herself. Dr. K tried to reason with her, but to no avail. She was left with no other
choice than to speak with the intending couple. Even after numerous meetings with the
intended couple the outcome ended in a deadlock.
9. With the failure of talks, Ms. X. was asked to join her employer EHRC back immediately.
She resumed her duties at EHRC the next day. After joining she was continuously harassed
with extra work.
10. Ms. X finally decided to go to court to stop the harassment. She files a suit for harassment
and seeks compensation of five lakhs rupees. During pendency of this case, she also files a
case before the High Court of Delta at Indiva under the Surrogacy Act, 2016 claiming that
this was a commercial surrogacy and praying for punishment for the intending couple and
EHRC.
11. This case has come up before the High Court of Delta at Indiva, and the matter is listed
for final arguments
12. Ms. X prays for the surrogacy agreement to be treated as a commercial surrogacy and for
the relief of punishment for initiation of commercial surrogacy, with the additional relief of
legal and physical rights over the child.
13. Mr. and Mrs. Y pray that this was not a commercial surrogacy and that the surrogacy
agreement violated. They pray for fulfillment of the contractual obligations.

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QUESTIONS PRESENTED
ISSUE 1: WHETHER THE PETITION FILED BY THE PETITIONER IS

MAINTAINABLE?
ISSUE 2: WHETHER THE CERTIFICATE ISSUED BY APPROPRIATE

AUTHORITY ON “CLOSE RELATIVES” IS VALID?
ISSUE 3: WHETHER THE SURROGACY AGREEMENT BETWEEN MS. X AND

MR. AND MRS. Y IS ENFORCEABLE UNDER SECTION 6, SURROGACY ACT,
2016?
ISSUE4: WHETHER THE SURROGACY AGREEMENT CAN BE TREATED AS A

COMMERCIAL SURROGACY?
ISSUE 5: WHETHER THE PETITIONER IS ENTITLED TO GET THE CUSTODY

OF THE CHILD?

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SUMMARY OF PLEADING

MAINTAINABLE?
It is humbly submitted before the Hon’ble High Court that, the petition filed by the
petitioner is not maintainable under Art.226 of the Constitution of Indiva.

It is humbly submitted before the Hon’ble High Court that, the certificate issued by
the appropriate authority on close relatives is valid as Ms. X is a member of the family who
can be termed under “close relative” for Surrogacy purposes.

MR. AND MRS. Y IS ENFORCEABLE UNDER SECTION 6, SURROGACY ACT,
2016?
It is humbly submitted before the Hon’ble High Court that, the Surrogacy agreement
between Ms. X and Mr. and Mrs. Y is enforceable under section 6 of Surrogacy Act, 2016 as
it fulfills the statutory essentials.

It is humbly submitted before the Hon’ble High Court that, the Surrogacy agreement
cannot be treated as a commercial Surrogacy as it lacks the statutory essentials of
Commercial Surrogacy.

OF THE CHILD?
It is humbly submitted before the Hon’ble High Court that, the petitioner, being the
surrogate mother who relinquished her rights over the child, is not entitled to get the custody
of the child.
ARGUMENTS ADVANCED

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MAINTAINABLE?
It is humbly submitted before the Hon’ble High Court of Indiva that, the petition
filed by the petitioner under Article 226 of Constitution of Indiva is not maintainable as there
is no violation of fundamental rights of the petitioner. The power of High Court to issue writs,
orders, directions can only be invoked when there is infringement of fundamental rights 1. The
Redressal mechanism has been provided under the statute which must be followed in case a
person is aggrieved2. The petitioner has not followed the statutory Redressal mechanism and
has wrongly invoked the jurisdiction of the court under Article 226 of the Constitution of
Indiva.
226. Power of High Court to issue certain writs:
(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose.
The scope of Article 226 can be invoked when the fundamental right of a person is
infringed and when there is no alternative efficacious remedy is available3.
(1.1)THAT THERE IS VIOLATION OF FUNDAMENTAL RIGHTS OF THE

PETITIONER:
In Surrogacy matters the surrogate mother relinquishes her right to motherhood when
she enters into the surrogacy agreement with the intending couple. When a right is waived by
the person holding it, he cannot challenge the same in the court of law4.
1 N.A. Shareefa v. State Of Kerala on 23 October, 2013; Indira Nehru Gandhi v, Shri Raj Narain & Anr on 7
November, 1975; Bareja Automobiles Pvt. Ltd v. State Of Haryana And Others on 17 August, 2012; Dayabhai
Poonambhai Patel v. The Regional Transport Authority, 1951 CriLJ 1305.
2 Seth Chand Ratan v. Pandit Durga Prasad. (2003) 5 SCC 399; CIT v. Chhabil Das Agarwal (2014) 1 scc
603 ; CIT v. Vijay Bhai N. Chandrani (2013) 357 ITR 13 (SC).
3 Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 AIR 101, 1990 SCR Supl. (1) 142; Delhi
High Court Bar Association v. Govt. Of Nct Of Delhi & Anr. On 9 October, 2013.
4 Rama pandey v. Union of India and Ors., 2015 ; Varsha Laxman Deshpande v. The Municipal Commissioner
2014; Rihannon Elizabeth Nixon v. Mrs Vimla Devi 2013.
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In the instant case the petitioner shows her willingness to be the surrogate mother and
was delighted to get time off work and spend time with her extended family 5. She even
clarifies various details regarding the agreement including the terms relating to cost and risk
involved in the surrogacy. And both parties signed the agreement after finalizing the
contractual terms6. Hence, the respondents are not guilty of infringement of Art.21 of the
Constitution.
(1.2) THAT THERE IS NO SUBSTANCIAL QUESTION OF LAW INVOLVED:
Whenever a question of law of general public importance arises the jurisdiction of the
Hon’ble High Court can be invoked. The jurisdictions conferred under Article 226 are
corrective one and not a restrictive one.7 The duty is enjoined upon the High Court to exercise
its power by setting right the illegality to be perpetuated. 8 It is contended by the respondents
that no substantial question of law is involved in the present case and the interference is based
on pure question of fact which is entitled to be dismissed. 9 This court had laid down the test
which says if the general principles to be applied in determining the question of those
principles the question would not be a substantial question of law.
It might involve question of law but not ‘substantial’ question of law. The present case
does not involve such substantial question of law.10 In Jamshed Hormsuji Wadia v. Board of
Trustees, Port of Mumbai11, the court emphasized that,
“The very conferment of the discretionary power defies any attempt at exhaustive
definition of power. The power is permitted to be invoked not in a routine fashion but in very
exceptional circumstances as when a question of law of general public importance arises or
a decision sought to be impugned before the high court shocks the conscience, this overriding
and exceptional power has been vested in the high court to be exercised sparingly and only in
the furtherance of cause of justice in the high court in exceptional cases only when special
circumstances are shown to exist”.
Hence, the petitioner has no stand to file the instant petition under Article 226.
5 Point 8 in moot proposition.

7 Haryana State Industrial Corporation v, Cork MFG.co., AIR 2008 SC 56.
8 Pawan Kumar v. State of Haryana (2003) 11SCC 241.
9 Maqsoodan v. State of U.P. AIR 1983 SC 126.
10 State of M.P. v. Desh Raj, (2004) 13 SCC 199.
11 Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
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(1.3) THAT THERE EXISTS AN EFFICACIOUS ALTERNATIVE REMEDY:
The High Court does not ordinarily issue a writ when an alternative efficacious
remedy is available.12 Under Article 226, the High Court does not decide disputes for which
remedy is available under general law. The principle has been stated by Supreme Court as
follows;13
“It is well settled that when an alternative and equally efficacious remedy is open to a
litigant, he should be required to pursue that remedy and not invoke the special jurisdiction
of the High Court to issue a prerogative writ. The existence of an adequate legal remedy is a
thing to be taken into consideration…”
It is contended that, a petition in exercise of the power under Article 226 of the
Constitution is discretionary and extraordinary, that too, when a complete mechanism for
efficacious remedy is provided under the statute.14
Furthermore, it is submitted that when a right or liability is created by a statute, which

itself prescribes the remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy and not the discretionary remedy under Art.226 of the
Constitution.15
Section 33(d) of Surrogacy (Regulation) Act, 2016 states that;
“To take appropriate legal action against the use of surrogacy by any person at any place
other than prescribed, suo motu or brought to its notice, and also to initiate independent
investigations in such matter”.
The ‘appropriate authority’ is having the jurisdiction to try the present case as
provided under Section 33(d).
Section 41(2) of Surrogacy (Regulation) Act, 2016 states that;
12 M.P.Jain, Indian Constitutional Law, (7th ed., 2014) at Pg.No. 412.

13 Union of India v. T.R. Verma, AIR 1957 SC 882.
14 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1032(8 th Edition); H.M. SEERVAI,
CONSTITUTIONAL LAW OF INDIA 1112 (4th Edition 1991); A.R. Antulay vs R.S. Nayak & Anr, 1988 AIR
1531, 1988 SCR Supl. (1) 1.
15 Seth Chand Ratan v. Pandit Durga Prasad. (2003) 5 SCC 399.
16
“No court inferior to that of metropolitan magistrate or judicial magistrate of first class shall
try any offence punishable under this Act”.
Therefore, the metropolitan magistrate or judicial magistrate of first class is having

the jurisdiction to present case.
The Apex Court in the case of CIT v. Chhabil Das Agarwal16, relied upon its earlier
decisions and held that:
“Thus, while it can be said that this court has recognized some exceptions to the rule of
alternative remedy, i.e., where the statutory authority has not acted in accordance with the
provisions of the enactment in question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the provisions which are repealed, or when an
order has been passed in total violation of the principles of natural justice, the proposition
laid down in Thansingh Nathmal v. Supdt. Of Taxes, 17 Titagarh Paper Mills v. State of
Orissa18, and other similar judgments that the HC will not entertain a petition under Article
226 of the Constitution if an effective alternative remedy is available to the aggrieved person
or the statute under which the action complained of has been taken itself contains a
mechanism for Redressal of grievances, a petition should not be entertained ignoring the
statutory dispensation.”
In Wolverhampton New Waterworks v. Hawkesford,19 Willes J. laid down that:
“There are three classes of cases in which a liability may be established founded upon
a statute. But there is a third class viz. where a liability not existing at a common law is
created by a statute which at the time gives a special and particular remedy for enforcing it.
The remedy provided by the statute must be followed, and it is not competent to the party to
pursue the course applicable to cases of the second class. The form given by the statute must
be adopted and adhere to.”
16 CIT v. Chhabil Das Agarwal (2014) 1 SCC 603 ; CIT v. Vijay Bhai N. Chandrani (2013) 357 ITR 13 (SC).
17 Thansingh Nathmal v. Supdt. Of Taxes, AIR 1964 SC 1419;K.S.Rashid &Sons v. Income Tax Investigation
Commission (1954) 25 ITR 167; Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1; UOI v. T.R. Verma
AIR 1957 SC 882; State of U.P. v. Mohd Nooh AIR 1958 SC 86.
18 Titagarh Paper Mills v. State of Orissa (1983) 2 SCC 433; K.S. Venkataraman and Co. v. State of Madras,
(1966) 60 ITR 112; N.T. Veluswami Thevar v. G raja Nainar AIR 1959 SC 422.
19 (1859) 141 ER 486; Neville v. London Express Newspaper Ltd. 1919 AC 368; Attorney General of Trinidad
and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532 (PC); Secy. Of State v. Mask and Co. AIR 1940 PC 105.
17
In Nivedita Sharma v. Cellular Operators Assn. of India,20 Hon’ble Apex Court held
that where hierarchy of appeals is provided by the statute, party must exhaust the statutory
remedies before resorting to writ jurisdiction for relief.
In Thansingh Nathmal v. Supdt. Of Taxes,21 the Apex Court adverted to the rule of
self-imposed restraint that the writ petition will not be entertained if an effective remedy is
available to the aggrieved person and observed:
“The HC does not therefore act as a court of appeal against the decision of a court or
tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226
trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to
the aggrieved petitioner to move, HC normally will not permit by entertaining a petition
under Article 226 of the constitution the machinery created under the statute to be bypassed,
and will leave the party applying to it to seek resort to the machinery so set up.”
In the case of Madhya Pradesh v. Income Tax Officer22 the Supreme Court has held
that, when there existed an adequate alternative remedy, then the writ petition would be
dismissed by the court. The petitioners, in the case at hand, did not exercise the proper course
of action provided by the alternative remedies before filing the writ petition.
It is therefore humbly submitted by the respondents that the petition filed by the
petitioner is not maintainable as there exists an alternative efficacious remedy and on account
of non-contravention of any fundamental right.

20 (2011) 14 SCC 337; S.T. Muttusami v. K.Natarajan (1988) 1 SCC 572; Rajasthan SRTC v. Krishna Kant
(1995)5 SCC 75; Kerala SEB v. Kurien E. Kalathil (2000)6 SCC 293; A. Venkatasubbaiah Naidu v.
S.Chellappan (2000) 7 SCC 695.
21 Supra at 9 ; Pratap Singh v. State of Haryana (2002) 7 SCC 484; LL.Sudhakar Reddy v. Sate of A.P. (2001) 6
SCC 634.
22 Madhya Pradesh v. Income Tax Officer, (1965) 57 ITR 637 SC.
18
It is humbly submitted before the Hon’ble High court that, the certificate issued by
the appropriate authority on “close relatives” is valid as the petitioner is a member of the
family, and there was no reason to believe otherwise.
Section 4 (iii) (b) (II) of Surrogacy Act, 2016 provides that:
“No person, other than a close relative of the intending couple, shall act as a surrogate
mother and be permitted to undergo surrogacy procedures as per the provisions of this Act”
(2.1) THAT THE ADOPTED MEMEBERS SHALL BE CONSIDERED AS BLOOD

RELATIVE:
Article 12 of the European Convention on Human Rights upholds the right to

start a family23. The right to start a family includes the right to adopt a child 24. Article 14 of
the ECHR states that “there shall not be any discrimination on any basis including sex, race,
birth, or other status. In broad terms the ECHR protects both the right to adopt a child and to
enjoy the other rights contained within it without discrimination- regardless of whether one is
adopted or adopts.”25
Thus, the definition of close relative shall include adopted members of family. Ms.X
being an adopted child of Mr. Y’s mother’s first cousin is a close relative.
(2.2) THAT THE APPROPRIATE AUTHORITY IS PROTECTED FOR ACTION

TAKEN IN GOOD FAITH:
Section 45 of Surrogacy (Regulation) Act, 2016 states:
45. Protection of action taken in good faith:

“No suit, prosecution or other legal proceeding shall lie against the central government or
the state government or the appropriate authority or any officer authorized by the central
23 https://www.equalityhumanrights.com/en/what-european-convention-human-rights reffered on 04-10-19.

24 Malay Kumar Ganguly v. Sukumar Mukherjee & Ors on 7 August, 2009; Mahendra Manilal Nanavati v.
Sushila Mahendra Nanavati, 1965 AIR 364, 1964 SCR (7) 267; Court On Its Own Motion v. Mahender Singh
Manan & Ors. on 29 March, 2017; Jan Mahomed Abdulla Datu v. Datu Jaffar, (1913) 15 BOMLR 1044.
25 https://www.equalityhumanrights.com/en/what-european-convention-human-rights referred on 04-10-19.
19
government or the state government or by the appropriate authority for anything which is in
good faith done or intend to be done in pursuance of the provision of this Act.”
Convention on the Rights of the Child Article 2(2) " states that parties shall take all
appropriate measures to ensure that the child is protected against all forms of discrimination
or punishment on the basis of the status, activities, expressed opinions....."
Therefore, the certificate issued by the appropriate authority on ‘close relatives’ is

done in good faith and intend to be done in pursuance of the provisions of this Act. And the
appropriate authority is protected under Section 45 of the Act.
In the case of Jane Antony v. V.M. Siyath26, it was held that, close relatives includes
the adopted members of the family and they shall not be discriminated on the basis of status.
And it was held that, only a close relative can be a surrogate mother.
Therefore, it is humbly submitted by the petitioner that, the certificate issued to Ms.X
on ‘close relatives’ is valid.

MR. AND MRS. Y UNDER SECTION 6 OF THE SURROGACY ACT IS
ENFORCEABLE?
It is humbly submitted to the Hon’ble High Court that the Surrogacy Agreement
between Mr. X and Mr. and Mrs. Y is enforceable as it fulfills the statutory essentials.
Surrogacy agreement is defined as “a contract between the persons availing of

assisted reproductive technology and the surrogate mother” under Section 2 (cc), ART Bill
2010. In simple terms surrogacy agreement means “a comprehensive document that lays the
foundation for governing relation between the commissioning couple and the surrogate
including rights, liabilities, responsibilities details about the need for surrogacy, purpose and
situation of both parties, the terms under which the surrogate has agreed, compensation,
payment schedule, etc”.27
26Jane Antony v. V.M. Siyath, MACA.No. 1324 of 2004 Kerala High Court.
27 Mother & Baby, Womb in your heart, available at- http://news.advisen.com/documents/AMX/contify_.xml.

20
The ART Bill 28 lays down the purpose and significance of this surrogacy agreement.
Surrogacy agreement enlists the minimum number of parties to the agreement and makes it
legally binding enforceable and sought to be governed by the Indian Contract Act, 187229.
The ART Bill expressly provide for entering into surrogacy agreement between the surrogate
mother and the couple who is seeking surrogacy through the use of assisted reproductive
technology and that the surrogacy agreement shall be legally enforceable.
Section 10 of Indian contract act 1872, provides:
10. Essentials of a valid contract:
“All agreements are contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are not here by expressly
declared to be void”.
There have to be two parties to a contract who willingly and knowingly enter into an
agreement. In the instant case the petitioner willingly and knowingly entered into the
agreement with the intending couple.
In the Indian Contract Act, the definition of consent is given in Section 13, which
states that “it is when two or more persons agree upon the same thing and in the same sense”.
Free consent has been defined in Section 14 of the Act30. The section says that
consent is considered free consent when the followings are not involved;
1. Coercion
2. Undue influence
3. Fraud
4. Misrepresentation
5. Mistake
So, the two people must agree to something in the same sense as well 31. The petitioner
carefully understood all terms of the agreement and changed few terms according to her
instructions32, which clearly shows petitioner has given her free consent and there was no
28 Alternative Reproductive Technology Bill. 2010.

29 Dr. Normann Witzleb v. Jyotshana Mandal & Anr. on 18 November, 2011; Rohit Shekhar v. Shri Narayan
Dutt Tiwari & Anr. on 23 September, 2011;LAW COMMISSION OF INDIA (REPORT NO. 228) NEED FOR
LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS
RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.
30 Indian Contract Act, 1872

31 Rustom Cavasjee Cooper v. Union Of India, 1970 AIR 564, 1970 SCR (3) 530; State Of Orissa & Other v.
The Tltaghur Paper Mills Company, 1985 AIR 1293, 1985 SCR (3) 26; India Tourism Development v. Miss
Susan Leigh Beer on 30 May, 2014.
32 Point no. 9 in moot proposition.
21
pressure on her to get the acceptance. The respondents have fulfilled all the essentials of a
valid contract.
Section 6 of Surrogacy (regulation) act, 2016 provides;
6. Written informed consent of surrogate mother.

“No person shall seek or conduct surrogacy procedures unless he has -
(I)Explained all known side effects and after effects of such procedures to the surrogate
mother concerned:
(ii) Obtained in the prescribed form, the written informed consent of the surrogate mother to
undergo such procedures in the language she understands.”
ESSENTIALS OF SECTION 6 OF SUROOGACY ACT, 2016:
 Inform surrogate mother regarding the procedures and complications or effects of

such procedures.
 Obtaining consent in written form.
As Ms. X is unable to read English, the terms were read out to her and translated
whenever she asked for, in her vernacular language. She clarified various details regarding
the terms, risk involved in surrogacy. After finalizing the contractual terms and conditions
both parties signed the agreement33,which acts as a proof of her consent as described under
Section 6 of the Surrogacy Act, 2016. Thus, there was consensus, meeting of mind and the
terms of the contract were agreed by both parties.
In Central Inland Water v. Brojo Nath Ganguly & Anr 34, it was held that, mere signing
in the agreement will be a proof of consent to enter into the said agreement and hence, to be
bound to oblige contractual obligations.
Under Section 4(ii) of Surrogacy Act, 2016 only altruistic surrogacy shall be done.
The intending couple entered into the surrogacy agreement according to law applicable and
they observed altruistic surrogacy. The petitioner intending to deceive the couple breached
the surrogacy agreement and put the couple in this position. The couple who had no other
33 Ibid.
34 Central Inland Water v. Brojo Nath Ganguly & Anr, 1986 AIR 1571, 1986 SCR (2) 278; Probir Kumar
Misra v. Ramani Ramaswamy on 28 August, 2009; Justice K.S.Puttaswamy(Retd) v. Union Of India on 26
September, 2018; Life Insurance Corporation Of ... v. Escorts Ltd. & Ors, 1986 AIR 1370, 1985 SCR Supl. (3)
909.

22
choice but to have child through surrogacy, were put under depression by the act of the
petitioner. They had no other means but to convince her through different approach which
included the offering of money. But the act of the respondents does not cover under
commercial surrogacy as they did not initiate any commercial surrogacy. Thus, there is no
ground to hold the respondents liable and to hold the agreement to be unenforceable.
Therefore, it is humbly submitted that the surrogacy agreement between Ms. X and
Mr. and Mrs. Y under Section 6, Surrogacy Act, 2016 is enforceable.

It is humbly submitted before the Hon’ble High Court that the surrogacy agreement
between Ms. X and Mr. and Mrs. Y cannot be treated as commercial surrogacy as it lacks
essentials of commercial surrogacy.
The very word ‘surrogate’ means ‘substitute’ 35. That means a surrogate mother is the
substitute for the genetic biological mother. Surrogacy is the process in which an individual
or a couple pays a fee to a woman in exchange for her carrying and delivering a baby 36. At
birth, the child is turned over to the individual or couple, either privately or through legal
adoption process37. The very word surrogate means substitute. That means a surrogate mother
is the substitute for the genetic biological mother38.
In common language, a surrogate mother is the person who is hired to bear a child,
which she hands over to her employer at birth. What began as an altruistic act by a
grandmother for her daughter wherein, she agreed to carry her baby in her womb has
undergone a tremendous change in the past 10 years and taken the form of a business activity
which can be more aptly termed as ‘womb on rent’ 39. Commercialization in the field of
surrogacy has made it a billion-dollar industry in many of the third world countries and one
of these countries is the great democratic nation Indiva.
Surrogacy has no doubt, provided a means to earn livelihood to a large section of

the below poverty line families in Indiva and has given them a chance to achieve the basic
35 The Law Commission Report, Report no. 228 on August 2009
36 Amy Antoinette McGregor &Anr v. Directorate of family welfare 2013, HC Delhi; Mr. Hassan
Ezadichamkhorami v. Mrs. Radha, 2011 DC Delhi.
37 Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr. on 23 September, 2011; Joseph Shine v. Union Of India on
27 September, 2018.
38 Rama Pandey v. Union of India & Ors 2015 Delhi HC.
39 Baby Manji Yamada v. Union of India & Anr, 2008 SC
23
necessities of life - food, shelter, education, etc. But it comes with its fair share of short
comings which cannot be ignored further as it affects a large number of lives, including the
ones which are yet to take their first breath in this world.
Section 2 (zb) of Surrogacy (Regulation) Act, 2016 defines ‘Surrogacy’ as, “Surrogacy
means a practice whereby one woman bears and gives birth to a child for an intending
couple with the intention of handing over such child to the intending couple after the birth”.
Section 2 (f) of the Surrogacy (Regulation) Act, 2016 defines the ‘commercial surrogacy’
as “ commercial surrogacy means commercialization of surrogacy services or procedures or
its component services or component procedures including selling or buying human embryo
or trading in the sale or purchase of human embryo or gametes or selling or buying or
trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees,
remuneration or monetary incentive in cash or kind, to the surrogate mother or her
dependents or her representative, except the medical expenses incurred on the surrogate
mother and the insurance coverage for the surrogate mother”.
In the instant case, the petitioner Ms. X is an employee of EHRC, approached by Dr.
K, to carry the child for Mr. and Mrs. Y. Ms. X shows her willingness to be the surrogate
mother as she has a daughter of her own as a first child who had been delivered as a healthy
baby girl. This positive experience motivated her to say yes to this surrogate agreement. She
was also delighted to get time off work and spend time with her extended family40.
The respondents are contending that, the surrogacy agreement is not a commercial
surrogacy on the following grounds;
1. The surrogate mother is a close relative of the intending couple, so she is eligible to
be the surrogate mother to their child.
2. Both parties together approached the appropriate authority under the Surrogacy Act,
2016.
3. Eligibility certificate was granted to the petitioner within 30 days.
4. Certificate of proven infertility for both of the intending couple was granted.
5. The agreement contains only a altruistic surrogacy.
6. The surrogacy agreement did not violate any provision of surrogacy Act, 2016.
7. The surrogacy agreement did not violate any other laws.
Therefore, the surrogacy agreement cannot be considered as commercial surrogacy as
it lacks the quality of commercial surrogacy.

24
(4.1) THE SURROGACY IS THE LAST HOPE OF THE CHILDLESS:
Surrogacy is a reproductive practice that has been strongly practiced in

India as a solution for childless couples. As a result, the number of surrogacy clinics is
increasing. Meanwhile, a global discourse on surrogacy, originating from a Western
perspective, has characterized surrogacy as being exploitative of women in low-
income settings, where poverty drives them to become surrogate mothers. Surrogacy
was seen as an acceptable reproduction method as it provides a childless couple with
their ‘own’ child with whom they share a genetic relation, in line with cultural
expectations of parenthood. The view that the surrogate mother is someone doing a
noble deed is supported by the notion that ‘care work’ is being done in surrogacy41.
In the instant case, the petitioner has violated the surrogacy agreement. She was
obliged to bear a child for the intending couple, and surrender the child to them when
the child is born and relinquish the right of motherhood to the intending parents 42. In
her fifth month of pregnancy, she expressed her request of being unable to continue
with the pregnancy, and wants an abortion43. This is unlawful according to Section 9
of Surrogacy Act, 2016 as it prohibits the abortion of surrogate child 44. Thus, the
petitioner has breached the contract.
Therefore, the respondents pray not to consider the surrogacy agreement as a

commercial surrogacy and to direct the surrogate mother i.e., petitioner to fulfill the
contractual obligation.
41 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5496060/
42 Point 7(a) in moot proposition.
44 Section 9: Prohibition of abortion; Surrogacy (regulation) Act, 2016.
25

OF THE CHILD?
It is humbly submitted before the Hon’ble High Court that, the intending couple are
entitled to get the custody of the child as they are the natural and genetic parents of the child.
The Black’s Law Dictionary categorizes surrogacy into two classes, ‘Gestational
surrogacy’ and ‘traditional surrogacy’. They are defined as follows;
“Gestational surrogacy- A pregnancy in which one woman (the genetic mother), provides
the egg, which is fertilized and another woman (the surrogate mother), carries the fetus and
gives birth to the child.”
“Traditional surrogacy- A pregnancy in which a woman provides her own egg, which is
fertilized by artificial insemination, and carries the fetus and gives birth to a child for another
person.”
Section 2(r) of the Surrogacy Act, 2016 defines the term ‘intending couple’ as follows;
“Intending couple means a couple who have been medically certified to be an infertile couple
and who intend to become parents through surrogacy”.
(5.1)THE CUSTODY OF THE CHILD TO THE RESPONDENT WILL NOT BE

DETRIMENTAL TO THE CHILD’S PHYSICAL AND MENTAL WELFARE:
Section 17 of the Guardians and Wards Act, provides -

17. Matter to be considered by the court in appointing guardian.
In appointing or declaring the guardian of a minor, the court shall, subject to the provisions
of this section, be guided by what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor. If the minor is old enough to
Forman intelligent preference, the court may consider that preference.

26
Section 13 of Hindu Minority and Guardianship Act states, ‘Welfare of the minor to be
paramount consideration’.
The glimpse of welfare can be taken as a paramount consideration for custody of the
child, can be traced in the case of Thirty Hoshie Dolikuka v. Hoshiarpur Shavaksha
Dolikuka45, where the court held that, the principles of law in relation to the custody of a
minor appear to be well-established. It is well settled that any matter concerning a minor, has
to be considered and decided only from the view point of view of the welfare and interest of
the minor.” Therefore, the custody of the child to mother has proved to be beneficial for the
overall growth and welfare of the child. In the instant case the natural guardians are intending
couple46 as they are genetically related to the child. And welfare of the child lies in being
under the shadow of the parents. In the instant case, the surrogate mother is not genetically
related to the petitioner.
The learned Judges in previous judicial decisions of M. Mansa Devi v. Makhar47, the
Middleton J., clarified that the word ‘welfare’ meant both material and spiritual welfare of the
minor. In Ram Prasad v. District Judge, Gorakhpur48, the Allahabad high court held that the
word ‘welfare’ meant not only material but ‘moral’ as well.
The English law, no less than Indian law, lays emphasis primarily on the welfare of the
child. In Re McGrath( infants)49, Lindsey J., said “ the dominant matter for the consideration
of the court is the welfare of the child. But the welfare of the child is not to be measured by
money only, or by physical comfort only. The word ‘welfare’ must be taken in its widest
sense”.
Bearing these principles in mind, we can say the welfare of the minor can only be attained if
the custody is given to the mother.50
45Thirty Hoshie Dolikuka v. Hoshiarpur Shavaksha Dolikuka, AIR 1982 SC 1276.

46 Rihannon Elizabeth Nixon v. Mrs Vimla Devi on 6 April, 2013; Joseph Shine v. Union Of India on 27
September, 2018; The Law Commission Report, Report no. 228 on August 2009.
47Mr. Mansa Devi v. Makhar AIR 1936 Pesh 207
48Ram Prasad v. District Judge, Gorakhpur, AIR 1920 All 89
49 Re Mc Grath (infants) (1893) 1 CH 143.
50Ibid.
27
(5.2) UNBORN CHILD’S CUSTODY:
It is humbly submitted that, though, the unborn child is physically attached to the
surrogate mother, the intending couple are the real parents to the child. The main object of the
surrogacy process was to provide child to the childless 51. And through gestational surrogacy,
it is possible to have their own child, when the parents are affected by infertility 52. A Jewish
proverb states that god could not be everywhere so he created mothers 53. A pious expression
of a mother is given to a female when she gives birth to a child.
(5.3) THAT THE INTENDING COUPLE SHALL BE GIVEN THE CUSTODY OF

THE CHILD BASED ON THE FOLLOWING GROUNDS;
1. The intending couple genetically related to the surrogate child as it was a gestational
surrogacy.
2. Surrogacy means a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after
the birth54.
3. The petitioner is obliged to hand over the child according to the terms of surrogacy
agreement55.
4. The main aim and objective of the concept of Surrogacy is to provide child to the
childless56.
Therefore, it is most humbly prayed before this Hon’ble court to grant the Custody of
the child to the intending Couple.
51 http://www.legalservicesindia.com/article/2310/Problems-And-Issues-of-Surrogate-Mother-and-Her-
Child.html
52 Baby Manji Yamada v. Union Of India & Anr on 29 September, 2008; Smt. Sadhna Agrawal v. State Of
Chhattisgarh on 3 January, 2017
53 https://www.boloji.com/articles/8584/mother-an-object-of-reverence referred on 05-10-19.
54 Section 2 (zb) of Surrogacy (Regulation) Act, 2016
55 Point 7(a) in moot proposition.
56 Issue (4.1) in the Memorial.
28
PRAYER
Therefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed that this court may be pleased to hold, adjudge and declare
that;
 The petition filed by the petitioner is not maintainable.

 The certificate issued by the appropriate authority on “close relatives” is valid.
 The Surrogacy Agreement between Ms. X and Mr. and Mrs. Y is enforceable.
 The surrogacy agreement is not a commercial surrogacy.
 The petitioner is guilty of violating the surrogacy agreement.
 The contractual obligations shall be fulfilled by the petitioner.
 The intending couple is entitled to have the custody of the child.
And pass any other order or direction that it may deem fit in the best interest of
justice, fairness, equality and good conscience, for this act of kindness, the counsel for
the petitioner shall be duty bound for ever pray.
COUNSEL FOR RESPONDENTS

29

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2ND VITSOL NATIONAL MOOT COURT COMPETITION ON SURROGACY LAW

SERIAL NO. CONTENTS PAGE NO.

MEMORIAL ON BEHALF OF RESPONDENTS

1. Abigail L. Perdue, “For Love or Money: An Analysis of the Contractual Regulation of

5. Field, Martha A, “Surrogate Motherhood”, 1988. 224p. Harvard University Press.

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

8. CIT v. Chhabil Das Agarwal (2014) 1 SCC 603.

16. India Tourism Development v. Miss Susan Leigh Beer (2014)

21. Joseph Shine v. Union of India, (2018) W.P. 194/2017.

23. Kerala SEB v. Kurien E. Kalathil (2000)6 SCC 293.

27. L.L. Sudhakar Reddy v. Sate of A.P. (2001) 6 SCC 634.

MEMORIAL ON BEHALF OF RESPONDENTS

57. Titagarh Paper Mills v. State of Orissa (1983) 2 SCC 433.

STATUTES REFERRED AND OTHER AUTHORITIES

1. Circular No.: 5/10/8/2008-RHN, Indian Council of Medical Research, dated:

MEMORIAL ON BEHALF OF RESPONDENTS

AIR ALL INDIA REPORT

LCR LAW COMMISSION REPORT

SCC SUPREME COURT CASE

UOI UNION OF INDIA

ART ASSISTED REPRODUCTIVE TECHNOLOGY

ITR INCOME TAX REPORTER

IVF IN VITRO FERTILISATION

M.P MADYA PRADESH

MEMORIAL ON BEHALF OF RESPONDENTS

EHRC EVVY HOSPITAL AND RESEARCH CENTRE

ECHR EUROPEAN CONVENTION ON HUMAN RIGHT

ICMR INDIAN CONCIL OF MEDICAL RESEARCH

MEMORIAL ON BEHALF OF RESPONDENTS

CASE CONCERNING THE SURROGACY LAW

Mr. and Mrs. Y Respondents

Art. 226. Power of High Court to issue certain writs:

IN THE HIGH COURT OF INDIVA

MEMORIAL ON BEHALF OF RESPONDENTS

STATEMENT OF THE FACT

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

ISSUE 1: WHETHER THE PETITION FILED BY THE PETITIONER IS

ISSUE 2: WHETHER THE CERTIFICATE ISSUED BY APPROPRIATE

ISSUE 3: WHETHER THE SURROGACY AGREEMENT BETWEEN MS. X AND

ISSUE4: WHETHER THE SURROGACY AGREEMENT CAN BE TREATED AS A

ISSUE 5: WHETHER THE PETITIONER IS ENTITLED TO GET THE CUSTODY

MEMORIAL ON BEHALF OF RESPONDENTS

ISSUE 1: WHETHER THE PETITION FILED BY THE PETITIONER IS

ISSUE 2: WHETHER THE CERTIFICATE ISSUED BY APPROPRIATE

ISSUE 3: WHETHER THE SURROGACY AGREEMENT BETWEEN MS. X AND

ISSUE4: WHETHER THE SURROGACY AGREEMENT CAN BE TREATED AS A

ISSUE 5: WHETHER THE PETITIONER IS ENTITLED TO GET THE CUSTODY

MEMORIAL ON BEHALF OF RESPONDENTS

ISSUE 1: WHETHER THE PETITION FILED BY THE PETITIONER IS

226. Power of High Court to issue certain writs:

(1.1)THAT THERE IS VIOLATION OF FUNDAMENTAL RIGHTS OF THE

(1.2) THAT THERE IS NO SUBSTANCIAL QUESTION OF LAW INVOLVED:

5 Point 8 in moot proposition.

(1.3) THAT THERE EXISTS AN EFFICACIOUS ALTERNATIVE REMEDY:

Furthermore, it is submitted that when a right or liability is created by a statute, which

Section 33(d) of Surrogacy (Regulation) Act, 2016 states that;

Section 41(2) of Surrogacy (Regulation) Act, 2016 states that;

12 M.P.Jain, Indian Constitutional Law, (7th ed., 2014) at Pg.No. 412.

Therefore, the metropolitan magistrate or judicial magistrate of first class is having

In Wolverhampton New Waterworks v. Hawkesford,19 Willes J. laid down that:

ISSUE 2: WHETHER THE CERTIFICATE ISSUED BY APPROPRIATE

Section 4 (iii) (b) (II) of Surrogacy Act, 2016 provides that: