TEAM CODE: 23

UWSL NATIONAL MOOT COURT COMPETITION 2022

BEFORE THE HON’BLE SUPREME COURT OF NILFGAARD

FILED UNDER 139(A) OF

THE CONSTITUTION OF NILFGAARD

IN THE MATTER OF

WRIT PETITION / TRANSFERRED PETITION NO. ……………...2022

HATTER CLINIC

VS

UNION OF NILFGAARD

WRIT PETITION / TRANSFERRED PETITION NO. ……………...2022

MR. ATULYA & MRS. ANNA

VS

UNION OF NILFGAARD & MS. KRITYA

WRIT PETITION / TRANSFERRED PETITION NO. ……………...2022

MR. RAJIV & MR. RHYTHM

VS

UNION OF NILFGAARD

WRIT PETITION / TRANSFERRED PETITION NO. ……………...2022

MR. SUHAS & MRS. SUHASANI

VS

MRS. SAGRIKA

ABOVE MENTIONED PETITION HAVE BEEN CLUBBED &

TRANSFERRED ON THE DIRECTION OF HON’BLE SUPREME COURT OF NILFGAARD

MEMORANDUM FOR
RESPONDENT
1
 Table of Contents

TABLE OF ABBREVIATIONS ……………………………………………………………...

INDEX OF AUTHORITIES ………………………………………………………………….

STATEMENT OF JURISDICTION …………………………………………………………

STATEMENT OF FACTS ……………………………………………………………………

ISSUES RAISED ………………………………………………………………………………

[1] WHETHER THE SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS

CONSTITUTIONAL OR NOT?

[2] WHETHER THE RIGHTS OF LGBTQ COMMUNITY IS BEING SUPRESSED BY THE

SURROGACY ARRANGEMNETS ORDINANCE, 2019?

[3] WHETHER THE COMMERCIAL SURROGACY CONTRACTS ARE ENFORCEABLE

OR NOT?

[4] WHETHER THE CUSTODY OF CHILD SHOULD BE GIVEN TO THE INTENDED

PARENTS?

SUMMARY OF ARGUMENTS …………………………………………………………….

ARGUMENTS ADVANCED …………………………………………………………………

PRAYER ……………………………………………………………………………………….

2
 TABLE OF ABBREVIATIONS

SAO,2019 Surrogacy Arrangements Ordinance, 2019

ART Assisted Reproductive Technology

Anr. Another

Art. Article

AIR All India Report

HMA, 1955 Hindu Marriage Act, 1955

SMA,1954 Special Marriage Act, 1954

Const. Constitution

UDHR Universal Declaration of Human Rights

Govt. Government

Hon’ble Honorable

WHO World Health Organisation

No. Number

Ors. Others

ICMR Indian Council of Medical Research

S./Sec. Section

SC Supreme Court

SCC Supreme Court Cases

St. State

u/s Under Section

v. Versus

NAMS National Academy of Medical Sciences

3
 INDEX OF AUTHORITIES

1 [Link], Sub-Divisional Magistrate, Delhi v. [Link] Kali, (1968) AIR 12

SC 1.
2 A.K. Gopalan v. State of Madras, (1950) SCR 88. 15

3 Ashutosh Gupta v. State of Rajasthan, (2002) AIR SC 1533. 13

4 Baby Manji Yamada v. Union of India, (2008) 13 SCC 518. 15

5 B.K. Parthasarathi vs Government of A.P. And Others, (2000) (1) ALD 199. 16
6 Bidhannagar (Salt Lake) Welfare Assn.v. Central Valuation Board and Ors, AIR 18
2007 SC 2276
7 Bombay Dyeing & Manufacturing Co. Ltd.v. Bombay Environmental Action
Group, AIR 2006 SC 1489.
8 Boothalinga Agencies v. V.T.C. Poriaswami Nadar, (1969) AIR SC 110 28
9 Fazaluddin v. Pnachanam Das, A.I.R. 1957 Cal. 92. 26
10 Govind v. State of Madhya Pradesh, (1975) AIR SC 1378. 16
11 Gherulal Parakh v. Mahadeodas Maiya and Others A.I.R. 1959 S.C. 781, 1959 27
S.C.R. Supl. (2) 2.
12 Government of Andhra Pradesh v. Ch. Gandhi, (2013) AIR SC 2113 28
13 Jagannath Prasad v. State of Uttar Pradesh, (1961) AIR SC 1245 13
14 Jan Balaz v. Anand Municipality, (2010) AIR Guj 21. 14
15 Jaycee B. v. Superior Court, (1996) 42 [Link].4Th 718. 14
16 Johnson v. Calvert, (1993) 851 P 2d 776 27
17 Javed v. State of Haryana, (2003) 8 SCC 369. 15
18 [Link] v. State of Andhra Pradesh, AIR 1985 SC 551 18
19 Middleton v. Texas Power and L. Company,248 US 152 12
20 Mohd. Shaheb Mahboob v. Dy. Custodian, (1961) AIR SC 1657. 13
21 Maneka Gandhi v. Union of India, (1978) AIR 597. 15
22 Mumbai-Pune Taxi Owners Association v. Principal Secy. Ministry of Surface 13
Transport, (2014) AIR BOM 2 (7) DB
23 Namit Sharma v Union of India, (2013) 1 SCC 745 19
24 Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476 12
25 Pathumma and Others v. State of Kerala, (1978) AIR SC 771 12

4
26 People'S Union of Civil Liberties ... vs Union of India (Uoi) And Anr., (1997) 16
AIR SC 568
27 Roe v. Wade, (1973) 410 U.S. 113 17
28 Re C (A Minor) (Ward Surrogacy) (Baby Cotton Case) 1985 F.L.R. 846 26
29 Rose Valley Real Estate & Construction Co v. United Commercial Bank, (2008) 28
AIR Gau 38
30 Shri Ram Krishna Dalmia v. Shri Justice [Link], (1958) AIR SC 538 12
31 State of Bihar and others v. Bihar Distillery Ltd, (1997) AIR SC 1511 13
32 State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235. 13
33 State of Haryana v. Jai Singh, (2003) 9 SCC 114 13
34 State of Gujarat v. Shri Ambica Mills, 1974 3 SCR 760 18
35 State of Andhra [Link] & Co., AIR 1996 SC 1627. 18
36 State Of Andhra Pradesh And vs Mcdowell & [Link] Ors 1996 AIR 1627, 1996 18
SCC (3) 709
37 State of Kerala v. PUCL, Kerala State Unit, (2009) 8 SCC 46 18
38 Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1. 19
39 Smt. Safiya Sultana Thru. Husband vs State of U.P. Thru. Secy. Home, (2021 20
40 State of Punjab v. Mohinder Singh Chawla, (1997) AIR SC 1225 17
41 STC v. Union of India, (1994) Supp (3) SCC 40 28
42 Soos v. Superior Court of the State of Arizona, 182 Ariz. 470(1994); 897 p.2d 27
1356(Ariz. Ct.
App.1994).
43 Subramanian Swamy vs Union of India, writ petition (criminal) no. 184 of 2014 16
44 Transport and Dock Workers Union v. Mumbai Port Trust, (2011) SCC 2 576 15
45 Welfare Association, ARP v. Ranjit P. Gohil, (2003) 9 SCC 358. 13

5
BOOKS REFERRED

Dr Narender Kumar, Constitutional Law of India (9th ed., Allahabad Law Agency 2015)
PM Bakshi, The Constitution of India (18th ed., LexisNexis 2022)
Dr J.N. Pandey, Constitutional Law of India (55th ed., Central Law Agency 2018)

STATUTES REFERRED
Constitution of India, 1950
The Christian Marriage Act,1872
General Clauses Act, 1897
Hindu Marriage Act, 1955
Indian Penal Code, 1860
India’s Adoption Regulations, 2017
Special Marriage Act, 1954
Shariat Application Act, 1937
The Guardians and Wards Act
The Indian Contract Act ,1872
The Assisted Reproductive Technologies (Regulation) Bill, 2010
The Surrogacy Regulation Bill, 2019

TREATIES REFERRED
Universal Declaration of Human Rights

6
ARTICLES AND WEBSITES REFERRED

1) Center for Social Research, Surrogate Motherhood: Ethical or Commercial, National

Commission for Women
2) Anil Malhotra and Ranjit Malhotra, “Surrogacy in India—A Law in the Making”,
2013 at 32.
3) HT Correspondent, Only marriage between man, woman valid, says Centre in Delhi
high court, HINDUSTAN TIMES, [Link]
news/samesex-marriage-plea-only-marriage-between-man-woman-valid-says-centre-
[Link]
4) TNN, Plea opposes same-sex marriages under Hindu Marriage Act, THE TIMES OF
INDIA, [Link]
marriages-under-hindu-marriage-act-hc-to-hear-case-in-
feb/articleshow/[Link]

5) Akshita Saxena, Make Registration of Same-Sex Marriage Either Religion-Neutral Or

Under Secular Law Only, LIVE LAW, [Link]
high-court-same-sex-marriage-registration-religion-neutral-secularism-article-25-
186855
6) “Capital Punishment”(2022), Wikipedia,
[Link]
7) Sofi Ahsan, Centre opposes same-sex marriage in Delhi HC, says not comparable
with ‘Indian family unit concept, THE INDIAN EXPRESS,
[Link]
7204303/
8) Samanwaya Rautray, Same sex marriages cannot be given legal sanction:
Government, THE ECONOMIC TIMES,
[Link]
not-comparable-with-indian-concept-
government/articleshow/[Link]?from=mdr
9) Neelam Chhagani, What If Surrogate Wants to Keep the Baby? IVF CONCEPTIONS,
What If Surrogate Wants To Keep The Baby? | IVF Conceptions

7
 STATEMENT OF JURISDICTION

THE RESPONDENTS HUMBLY SUBMIT TO THE JURISDICTION OF THE HON’BLE

SUPREME COURT OF NILFGAARD UNDER ARTICLE 139A OF THE CONSTITUTION
OF NILFGAARD.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS.

STATEMENT OF FACTS

*The Union of Nilfgaard, one of the most populous democracies was noticing an increase in
the commercial surrogacy practices and this rise made many women to be surrogates, after
the increase in this practice a survey was conducted, and it was found that 51% of surrogates
were not adequately remunerated & were often exploited due to their socio-economic
backgrounds.

*This made the newly elected govt. to regulate the laws regarding the surrogacy practices &
the Surrogacy Arrangements Bill, 2018 was introduced & passed in the lower house of the
parliament but was rejected by the upper house which made the government to bring an
ordinance to regulate surrogacy & Surrogacy Arrangements Ordinance, 2019 was
promulgated.

*One of the clinic naming Hatter Clinic in Ariana which was known for its exemplary
services for commercial surrogacy procedures, also got their & others business completely
unviable which resulted in retrenchment of a number of surrogate mothers on their pay roles
& made it impossible to continue paying the premium of their employee health insurance,
also as per the penal consequence in the ordinance many parents repudiated their contracts
with the hatter clinics & asked for refund of their advance payments & threatened the hatter
clinic to sue them if they failed to pay the refund. This made the Hatter Clinic to file a writ
petition to challenge the constitutionality of the ordinance before the High Court of Ariana.

*One married couple Mr. Atulya who was a Nilfgaardian Citizen & his wife Mrs. Anna who
was the Zangvebar citizen were also a Hatter’s clinic client. Mrs. Anna suffered from
(LHON) syndrome and as it’s a mitochondrial disease, so they decided to conceive a child
through surrogacy. So, they approached the clinic in December 2019 & Ms. Kritya who was
an unmarried educated and independent women agreed to become a surrogate mother for

8
consideration of Rs 10 lakh after that it was agreed that through artificial insemination using
Mr. Atulya’s sperm Ms. Kritya will is impregnated. and the traditional surrogacy contract
advance payment was made to Ms. Kritya but before the artificial insemination process could
be conducted the ordinance was promulgated & afraid of the penal consequences under the
ordinance Ms. Krityawill backed out of the traditional surrogacy contract which made Mr.
Atulya and Mrs. Anna to challenge the vires of the provision of the ordinance before the High
Court of Ariana

*Mr. Rajeev and Mr. Rhythm who were a gay couple belonging to Hindu religion were
residing in the state of Tarakota a state in the Union of Nilfgaard. In 2018 they had a secret
ceremony to avoid the societal backlash in a temple to solemnize marriage but they were not
able to register their marriage under the Hindu Marriage Act 1955 and Special Marriage Act
1954, for having a family they decided to opt for the surrogacy procedure to relish the joy of
parenthood but due to the promulgation of Surrogacy Regulation Ordinance of 2019 their
hopes became grim & as the ordinance allowed only a certain set of people to become
surrogate parents, Section 4 (c) (II) of the ordinance imposed restriction on couples that they
should be married for at least 5 years and are Nilfgaardian citizen. So, they challenge the
provision of Ordinance before the high court of Terracotta

*Mr. Suhas & Mrs. Suhasani a married couple were also unable to have the children which
made them to opt for the surrogacy procedures so with the help of Mr Aman Mr. Suhas met
Mr. Samarth wife Sagrika who was also unable to conceive due Mr Samarth infertility. So,
Mr Suhas and Mrs. Suhasini entered into a surrogacy contract with Mrs. Sagarika for a sum
of 15 lakh it was also confirm that if any dispute arises out of the surrogacy contract it should
be settled by the sole member Arbitration Tribunal of Mr Aman and as per the Arbitration &
Consolation act 1996 and this ordinance came into effect during the gestation period of Mrs.
Sagrika and after the birth of the child Mrs. Sagrika changed her mind and decided to keep
the child and forego the money which made Mr. Suhas and Mrs Suhasini to file a petition for
a writ of habeas corpus seeking custody of the child before the high court of Kimanu.

*This made the supreme court of Nilfgaard on its on motion to transfer the Writ Petitions
pending before the different High Courts to itself and after the completion of the pleadings
the Supreme Court listed the Wit Petitions / Transferred Petitions for filing hearing on April
28, 2022.

9
 ISSUES RAISED & SUMMARY OF ARGUEMENTS

ISSUE 1

WHETHER THE SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS

CONSTITUTIONAL OR NOT?

It is humbly submitted that presumption is always in the favour of constitutionality of a

statute. The SAO, 2019 doesn’t violate FR’s. SAO, 2019 is has been founded on intelligible
differentia & there is rational nexus between classification &objective sought. The SAO,
2019 doesn’t violate since it lays down a due process to implement its objectives which are
reasonable and imperative in the light of compelling state interest. It protects women’s right
against exploitation and right to health.

ISSUE 2

WHETHER THE RIGHTS OF LGBTQ COMMUNITY IS BEING SUPRESSED BY

THE SURROGACY ARRANGEMNETS ORDINANCE, 2019?

It is contended that SAO, 2019 doesn’t violate FR’s of the Gay couples as it is founded on a
reasonable classification. Art 21 stipulates that right to life is not absolute and must be
exercise in accordance with the existing laws. Till date no legislation has recognised the
same-sex marriage(procreation). Moreover, same-sex marriage is against the public order of
the state & is not in consonance with the existing state laws.

ISSUE 3
WHETHER THE COMMERCIAL SURROGACY CONTRACTS ARE
ENFORCEABLE OR NOT?

It is humbly submitted before the Hon’ble SC that the [I] Commercial Surrogacy Contracts
are regulated by Indian Contract Act, 1872. [II] Commercial surrogacy contracts don’t fulfill
the necessary essentials specified in Sec10 of Indian Contract Act & are against the public
order. [III] Contracts made in the instant cases becomes void due to the subsequent
impossibility of performance because of the direct intervention of the legislation.

10
[IV] Commercial surrogacy contracts shouldn't be legalized because such type of contracts
leads to exploitation.

ISSUE 4

WHETHER THE CUSTODY OF CHILD SHOULD BE GIVEN TO INTENDED

PARENTS?

It is Humbly submitted before the Hon’ble court that the Mr Suhas and Mrs Suhasani are not
the natural guardians of the child born out through surrogacy as the surrogate mother is the
natural mother of the child. The contract in the instant case is invalid as it conflicts with the
law of the land and public policy of the state.

11
 ARGUMENTS ADVANCED

WHETHER THE SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS

CONSTITUTIONAL OR NOT?

[1] Presumption of Constitutionality

It is a well-established position of law that courts must presume that executive authorities are
acting in conformity with both the spirit and the substance of the law: "omina praesumutur
rite esse acts”.

It is submitted that the presumption is always in the favour of constitutionality of an order

and it is for the petitioner to show how his fundamental right has been infringed, failing
which, his petition will be dismissed. It must be presumed that the state understands and
correctly appreciates the need of its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on adequate grounds.1 It is quite
evident that the President had before him all this material was evident that in order to prevent
the exploitation of surrogate mother and child, it was necessary to conceive of intervention by
the State through its legislative and executive powers. In Peoples Union for Civil Liberties v.
Union of India2, the Hon'ble Supreme Court held that a statute carries with it a presumption
of constitutionality and such a presumption extends also to a law which has been enacted for
imposing reasonable restrictions in the fundamental right. It is further held that a further
presumption may also be drawn that the statutory authority would not exercise the power
arbitrarily. It is obvious that the legislature is in the best position to understand and appreciate
the needs of the people as enjoined by the Constitution to bring about social reforms for the
upliftment of the backward and the weak-or sections of the society and for the improvement
of the lot of poor [Link] Court should strike down the enactment only when it is not
possible to sustain it. In State of Bihar and others v. Bihar Distillery Ltd, the SC stated that the Court
should not approach the enactment with a view to pick holes or to search for defects of
drafting, much less in exactitude of language employed. Indeed, any such defects of drafting

1
Shri Ram Krishna Dalmia v. Shri Justice [Link], (1958) AIR SC 538; In [Link], Sub-
Divisional Magistrate, Delhi v. [Link] Kali, (1968) AIR SC 1; Middleton v. Texas Power and L.
Company,248
US 152
2
Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476
3
Pathumma and Others v. State of Kerala, (1978) AIR SC 771

12
should be ironed out as part of the attempt to sustain the validity/constitutionality of the
enactment4

[1.A] Surrogacy Arrangements Ordinance, 2019 doesn’t violates right to equality

Article 14 of the Constitution of Nilfgaard guarantees one’s Right to Equality which is a

necessary corollary of Rule of Law which pervades the Constitution.5 However, equal
protection of the laws does not postulate equal treatment of all persons without distinction. It
denotes equality of treatment only in equal circumstances.6 Differential treatment does not
per se amount to violation of Article 14 of the Constitution and arbitrary treatment; however,
it is violated only when there is no reasonable basis.7It is contended that the SAO,2019 does
not violate Article 14 of the constitution as the classification is founded on an intelligible
differentia, and there is rational nexus between classification and objective sought.

[1.A.a] The Classification Is Based On an Intelligible Differentia

Article 14 allows reasonable classification when it is based on real and substantial distinction
based on intelligible differentia.8

In the present matter, the SAO,2019 classifies persons on the basis of their marital status,
nationality and sexual orientation. Secondly, the Act specifies the categories of women who
can act as the surrogate mother. Lastly, it differentiates between altruistic and commercial
surrogacy. It is contended that these bases for classification are not artificial, evasive or
arbitrary.

It is argued that the distinction between married heterosexual couples and homosexual
couples is not artificial because there is currently no legislation in India that recognises the
conjugal rights of a homosexual couple, in contrast to the availability of conjugal rights for
the former. It is clear from the following that the status of homosexual couples in India is not
the same as that of legally married couples, and their social standing differs.

The provision stating only married mother with at least one baby to be a surrogate mother is
for the welfare of the women and to prevent the commoditisation of the body. Single women

4
In State of Bihar and others v. Bihar Distillery Ltd, (1997) AIR SC 1511
5
Ashutosh Gupta v. State of Rajasthan, (2002) AIR SC 1533
6
Jagannath Prasad v. State of Uttar Pradesh, (1961) AIR SC 1245; Mohd. Shaheb Mahboob v. Dy. Custodian,
(1961) AIR SC 1657.
7
State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235.
8
State of Haryana v. Jai Singh, (2003) 9 SCC 114; Welfare Association; ARP v. Ranjit P. Gohil, (2003) 9 SCC
358; Mumbai-Pune Taxi Owners Association v. Principal Secy. Ministry of Surface Transport, (2014) AIR
BOM 2 (7) DB

13
lack familial support and are prone to exploitation. The National Commission for women has
recommended that surrogates should be married and have children. The surrogate must have
a medically proven fertility. If she has not given birth before, she might be unaware about
what to expect out of a pregnancy and find it hard to cope up with the pregnancy process9

According to the SAO,2019, a "intending couple" must be a medically certified infertile

couple who wish to become parents through surrogacy, and "infertility" is defined as the
inability to conceive after five years of unprotected coitus or other proven medical condition
preventing a couple from conception. It is argued that this classification for intending couples
is purely medical for the purposes of surrogacy technicalities and is not based on sexual
orientation.

Commercial surrogacy in India often happens through transnational arrangements, whereby

the commissioning parents are ‘reproductive tourists’ to India trying to escape stringent laws
in their home countries and to cut costs, often determination of the citizenship of children
born out of transnational commercial surrogacy arrangements becomes knotty as many
countries outlaw surrogacy and doesn't recognize surrogate children. In Goldberg Twins case,
Mr Goldberg and Mr Angel, a gay couple from Israel, arranged a surrogacy in India using a
donated egg and Mr Goldberg’s sperm. Israel allows surrogacy but does not allow gay
couples to be parents under surrogacy arrangements. When Goldberg and Angels surrogacy
resulted in the birth of twin boys, they found themselves stranded in India after the Jerusalem
Family Court refused to allow a paternity test to initiate the process for gaining Israeli
citizenship for the twins.10 Another surrogacy case, involving German commissioning
parents. A German couple, Mrs. and Mr Balaz, commissioned a surrogate pregnancy in India
using Mr Balaz's sperm and a donated egg. As a result, twins Nikolas and Leonard were born
in India in 2008 but had to remain there for two years due to their Statelessness. The twins
were originally registered and issued with Indian birth certificates naming the Balaz's as their
parents. A legal battle ensued when the German authorities refused to recognise the birth
certifications as establishing the parentage or German nationality of the twins due to
surrogacy being illegal in Germany11. In Jaycee B. v. Superior Court12 , the surrogate child
did not have a legal battle for three years due to anonymity of donors. Similar contradictions

9
Center for Social Research, Surrogate Motherhood: Ethical or Commercial, National Commission for Women,
available at http: //[Link]/pdfReports/Surrogacy_Report_CSR.pdf.
10
Anil Malhotra and Ranjit Malhotra, “Surrogacy in India—A Law in the Making”, 2013 at 32.
11
Jan Balaz v. Anand Municipality, (2010) AIR Guj 21.
12
Jaycee B. v. Superior Court, (1996) 42 [Link].4Th 718.

14
relayed to citizenship were observed in Baby Manji Case13. Various Indian courts, on many
occasions, have directed the government to legislate on this matter to avoid such situations
for infants. Therefore, to avoid conflict of laws and in the best interest of the child born out of
transitional surrogacy arrangements, a reasonable distinction is made between Indian
nationals and foreigners. If a classification is conducive to the functioning of modern society,
it would be reasonable and rational and not violative of Art 14.14

[1.A.b] There Is Rational Nexus Between Classification and Objective Sought

The 228th Law Commission Report suggested that active legislative intervention was
required to facilitate correct uses of the new technology i.e. Assisted Reproductive
Technology (ART) and relinquish the cocooned approach to legalization of surrogacy
adopted hitherto. The need of the hour was to adopt a pragmatic approach by legalizing
altruistic surrogacy arrangements and prohibit commercial ones.15

The requirement of a rational nexus between classification and objective sought has been put
forth by the courts in various cases.16 The objectives of the SAO,2019 are to regulate
surrogacy services to curb unethical practices, to prohibit commercial surrogacy including
sale and purchase of human embryo and gametes, to prohibit potential exploitation of
surrogate mothers and protect the rights of children born through surrogacy.

[1.B] Surrogacy Arrangements Ordinance, 2019 doesn’t violates Right to Life

It is contended before this Hon’ble court that SAO,2019 doesn’t violate one’s right to life.
Article 21 provides that the right to life is subjected to procedure established by law.17 It is
contended that The Surrogacy Act does not violate one’s Right to Life and liberty since it
lays down a due process to implement its objectives that is reasonable and imperative in the
light of compelling state interest.18

The Law Commission, in its 228th Report19, recommended the prohibition of commercial
surrogacy citing the reason that the practice of surrogacy has been misused by surrogacy
clinics, which leads to rampant commercial surrogacy and unethical practices.20 Additionally,

13
Manji Yamada v. Union of India, (2008) 13 SCC 518.
14
Transport and Dock Workers Union v. Mumbai Port Trust, (2011) SCC 2 576
15
Law Commission of India, 228th Report 2009, p. 24.
16
Javed v. State of Haryana, (2003) 8 SCC 369; State of Haryana v. Jai Singh, (2003) 9 SCC 114.
17
A.K. Gopalan v. State of Madras, (1950) SCR 88, R.C. Cooper v. Union of India, (1970) 1 SCC 248
18
Maneka Gandhi v. Union of India, (1978) AIR 597.
19
Law Commission of India, 228th Report 2009, p. 24.
20
Ibid

15
the Report criticised surrogacy for commodifying children, dissolving the bond between
mother and child, and exploitation of poor women in developing countries who sell their
bodies for money.21 A survey conducted by “Nilfgaard for Women” association showed that
51 % of surrogate mothers are not adequately remunerated and are often exploited due to
their socio-economic background.22 An important media house named “Hogwarts Express”,
in a story covered the apathy of many surrogate mothers and exposed the iniquitous
functioning of various surrogate clinics in the Union of Nilfgaard.23 In the famous Baby M
case24, the New Jersey Supreme Court came to the conclusion that surrogacy contract is
against public policy. Thus, it is contended that the provisions of the SAO,2019 are crucial to
maintain good health and dignity of both surrogate mothers and babies.

[1.C] Surrogacy Arrangements Ordinance, 2019 doesn’t violates Right to Privacy

Article 21 guarantees right to life and personal liberty which encompasses right to privacy but
right to privacy is not absolute and is subject to restrictions on the basis of public interest25. It
is subject to restriction by the state to promote compelling interest of the state.26 The right to
privacy is not explicitly provided under the Constitution of India. It can be implied from
Article 21 of the Indian Constitution and therefore is not absolute in its entirety. Thus,
reasonable restriction can be imposed on an individual’s right to privacy and this is to be
determined through a comprehensive analysis of the facts of the case and through the
compelling state interest test.27 In Subramanian Swamy v. UOI (2016)28, it was advanced, in
context of the First Exception to Section 499 of the IPC, that the right to privacy is respected,
but it will give way in case of a truthful disclosure, albeit private, which is meant for public
good. In upholding the constitutional validity of criminal defamation, the apex court had
observed, “The nature of social control which includes public interest has a role. The
conception of social interest has to be borne in mind while considering the reasonableness of
the restriction imposed on a right.” In PUCL v. UOI29, the Supreme Court had observed, “By
calling upon the contesting candidate to disclose the assets and liabilities of his/her spouse,
the fundamental right to information of a voter/citizen is thereby promoted. When there is a

21
Law Commission of India, 228th Report 2009, p. 11.
22
Moot Proposition para 3
23
Moot Proposition para 4
24
In re Baby M, 537 A.2d 1227.
25
Govind v. State of Madhya Pradesh, (1975) AIR SC 1378.
26
B.K. Parthasarathi vs Government of A.P. And Others, (2000) (1) ALD 199.
27
Supra note 10
28
Subramanian Swamy vs Union of India, writ petition (criminal) no. 184 of 2014
29
People'S Union of Civil Liberties ... vs Union of India (Uoi) And Anr., (1997) AIR SC 568

16
competition between the right to privacy of an individual and the right to information of the
citizens, the former right has to be subordinated to the latter right as it serves larger public
interest.

The SAO,2019 prohibits commercial surrogacy and specifies certain requirements for the
procedure, which is in the best interests of surrogate mothers and the children born as a result
of the surrogacy process. This is critical in order to protect their right to health as well as their
liberty. As a result, the SAO, 2019 does not violate the right to privacy because the right in
question is subject to restrictions in the public interest.

The SAO, 2019 protects women against exploitation and ensures their right to health

The SAO,2019 is in accordance with the right to life and right against exploitation. Surrogacy
recognises women as a commodity, providing an “endocrinological vehicle” for performing a
“gestational role”. The surrogacy industry is estimated to be worth more than USD 2.3
billion. There is no legal framework in place to govern surrogacy and the lives of the children
involved. It can be assumed that the surrogate mother can be qualified as forced labour which
is one of the criteria of exploitation as they do it out of necessity or vulnerability. Article
19(6) expressly permits imposition of restrictions in the interest general public. The
ordinance doesn’t violate right to practise any profession or to carry on any occupation, trade
or business, as the restriction imposed does have direct nexus with the object of the
legislation due to the reasons mentioned aforesaid. Article 21 guarantees life and personal
liberty and there are many rights which are comprehended under Article 21, one of which is
one’s ‘Right to health’30. The preamble of World Health Organisation (WHO) states that, it
is one of the fundamental rights of every human being to enjoy the highest attainable standard
of health. The term “health” encompasses within its ambit women’s right to reproductive
health. In the case of Roe v. Wade31, the U.S. Supreme Court held the protection of health of
the women to be ‘a compelling interest to the State’. It has been held that the right to health is
an essential component of a meaningful right to life, and there is an urgent need in India for
women's reproductive rights to be protected, as the current trend is not only dismissive but
also concerning. The SAO,2019 bans commercial surrogacy and lays down specifications
such as age barrier of surrogate mother, limitation on number of children she may bear,
requirement of genetic relation to surrogate parents, among others. It is contended that these

30
State of Punjab v. Mohinder Singh Chawla, (1997) AIR SC 1225
31
Roe v. Wade, 410 U.S. 113. (1973)

17
provisions are important to maintain the health of surrogate mothers and babies. Thus,
SAO,2019 protects their Right to Health under Art 21 of the Constitution.

[2] WHETHER SURROGACY ARRANGEMENTS ORDINANCE SUPPRESSES THE

RIGHTS OF LGBT COMMUNITY?

It is contended that the SAO ,2019 does not violate or suppress the Rights of LGBTQ
community, it does not infringe any fundamental rights of the LGBTQ community.

[2.A] SAO, 2019 Does Not Violate Article 14 of The Constitution with Respect to LGBT
Community
It is contended that SAO,2019 does not violate one’s Right to Equality since, it does not violate
Article 14 of the constitution as the classification is founded on an intelligible differentia, and
there is rational nexus between classification and objective sought, and possibility of abuse of
power does not render a legislation arbitrary. In order to declare a statute ultra vires Article 14,
the Court must be satisfied that the statute is substantively unreasonable.32 SAO,2019 was
enacted with the intent of curbing the growing threat of exploitation of women who serve as
surrogates, as well as protecting the future of children born as a result of such arrangements.
This was done in light of the facts and circumstances in cases like Baby Manji Yamada vs.
Union of India33, in which the intended parents refused to accept the child due to a matrimonial
dispute.

If classification is not arbitrary, it is justified.34 If an enactment is challenged as violating

Article 14, it can only be overturned if the equality clause/equal protection clause enshrined
therein is found to be violated.35 The legislature as a whole cannot be accused of passing a law
for a non-legislative purpose.36 No law can be declared unconstitutional simply because it is
arbitrary or unreasonable.37 In the field of law, there is no such thing as transferred malice.38
Every law must pass the constitutionality test, which is nothing more than a formal test of

32
Bidhannagar (Salt Lake) Welfare Assn.v. Central Valuation Board and Ors, AIR 2007 SC 2276
33
Manji Yamada vs. Union of India AIR 2009 SC 84
34
State of Gujarat v. Shri Ambica Mills, 1974 3 SCR 760
35
State of Andhra [Link] & Co., AIR 1996 SC 1627.
36
[Link]. State of Andhra Pradesh, AIR 1985 SC 551
37
State Of Andhra Pradesh And vs Mcdowell & [Link] Ors 1996 AIR 1627, 1996 SCC (3) 709
38
State of Kerala v. PUCL, Kerala State Unit, (2009) 8 SCC 46

18
rationality,39 and it has been argued before this Hon'ble Court that the current enactment makes
a classification for a reasonable purpose.

[2.B] SAO,2019 Does Not Violate Art 15 Of The Constitution with Respect to LGBT Community
It is contended that SAO,2019 does not violate Article 15 of the Constitution of Indica as it is
not disproportionate and discriminatory in its impact and there is compelling state interest
involved.

In Gobind v. State of M.P.40the Supreme Court held that privacy claims should be carefully
considered and denied only when a compelling state interest or an important countervailing
interest can be demonstrated. A law that infringes on a fundamental privacy right must pass the
compelling state interest test, which determines whether the state interest is so important that
an infringement of the right is justified.41 In such a case, the government's intervention must
be justified and proportional.42

It is argued that relationship homosexuals are against the cultural norms of the society 43. It is
also critical to maintain public health in general society; as homosexual sexual activities are
considered High-Risk Groups (HRGs) among HIV/AIDS-infected people. As a result, it is
argued that provisions regarding LGBT in the SAO, 2019 are justified and crucial because it is
based on legitimate and compelling state interest.

[2.C] SAO,2019 Does Not Violate Art 21 Of The Constitution with Respect to LGBT Community
It is contended that SAO,2019 does not violate Art. 21 of the Constitution of Nilfgard as it
qualifies the test of substantive due process, it does not violate one’s Right to Privacy, and it is
in the interest of public health.

The Fundamental Right under Art. 12 is subject to legal procedure, and it cannot be expanded
to include the fundamental right to same-sex marriage recognition under laws that actually
prohibit it. The right to life is guaranteed by Art. 21 of the constitution. This privilege can only
be taken away by a law that is substantively, procedurally, and substantively fair, just, and
reasonable. Any interference with existing marriage laws would completely destabilize the
country's delicate balance of personal laws.

39
Namit Sharma v Union of India, (2013) 1 SCC 745
40
Govind v. State of M.P., AIR 1975 SC 1378
41
Ibid.
42
Ibid.
43
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.

19
Article 21 stipulates that the right to life and liberty must be exercised in accordance with legal
procedures. Through a combined reading of Articles 14, 21, and 19, the requirement of
substantive due process has been read into the Indian Constitution, and it has been held as a
standard to be satisfied when determining the legality of a statute. The Supreme Court
established the due process requirement in the well-known case of Maneka Gandhi v. Union
of India, which declares that, in addition to prescribing a mechanism for the limitation of one's
right, the procedure must be equitable and reasonable. It must also meet the requirements of
other Constitutional articles, such as Articles 14 and 19.

Furthermore, as previously stated, SAO,2019 does not violate Article 14 or 19 of the

Constitution, which is a requirement under the Maneka Gandhi v. Union of India test. As a
result, it is argued that SAO,2019 adheres to a substantive due process that is reasonable and
non-arbitrary, and thus does not violate one's right to life and liberty.

[2.D] Same-sex marriage is unjustifiable

The respondent submits that the right to marry is not expressly recognized either as a
fundamental or constitutional right under the Indian Constitution.44 Though marriage is
regulated through various statutory enactments, its recognition as a fundamental right has only
developed through judicial decisions of India’s Supreme Court.45 The courts in India till date
didn’t recognized the same-sex marriage. In the Delhi High Court, the Central Government
argued that a marriage in India can only be recognized if it is between a "biological man" and
a "biological woman" capable of bearing children.46

In the legal terms, Marriage has been defined as the state of being united to a person of the
opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized
and sanctioned by and dissolvable only by law47

In the instant case, the petitioner Mr. Rajiv and Mr. Rhythm are same sex couples De facto
belongs to the LGBTQ comm. and as per the facts stated marriage is the state of being united
to a person of the opposite sex as husband or wife in a legal and contractual relationships
recognized by law.

44
Smt. Safiya Sultana Thru. Husband vs State of U.P. Thru. Secy. Home, (2021)

46
HT Correspondent, Only marriage between man, woman valid, says Centre in Delhi high court,
HINDUSTAN TIMES, Oct 26, 2021 04:18 AM IST, [Link]
marriage-plea-only-marriage-between-man-woman-valid-says-centre-in-delhi-high-court-
[Link]
47
MERRIAM-WEBSTER, Merriam-Webster's dictionary of law 48-50 (Springfield, 1996)

20
[2.E] Marriage under personal laws - Marriages in India are governed by personal laws such
as the Hindu Marriage Act, 1955, the Indian Christian Marriage Act, 1872, and the Muslim
Personal Law (Shariat) Application Act, 1937, among others. Although same-sex and queer
marriages are not legally recognized,

[2.E.a] Hindu law

Under the present system of family law in India, citizens have a choice b/w their respected
religion-based and community-specific marriages laws or the general and common law of civil
marriage. While none of the acts have explicitly defined marriage as union one man and
woman, the law has been legally interpreted and understood to mean marriage b/w a man and
woman through terms like “Bride”, “Bridegroom”,” Husband”,” Wife”.

Even though there is no explicit definition, but there is a clear heterosexist understanding to
the notion of marriage. For eg; sec 5 of HMA48 states that, inter alia, that a marriage may be
solemnized b/w “any two Hindus” if “the bridegroom has completed the age of 21 years and
the bride the age of 18 years at the time of marriage. Although “bride” & “groom” are not
defined.

It is contended with the given facts that Mr. Rajiv and Mr. Rhythm were gay couples belonging
to Hindu religion. Even though they had a secret ceremony in a temple their marriage cannot
be solemnized because Hindu Marriage Act does not recognize same-sex marriages.

Marriages in Hindu societies are deeply rooted in their religion, and are derived and associated
with divine entities as well as religious texts, and thus have significant sentimental value.”49
Under the Hindu Marriage Act, same-sex marriage is not only against the religious system of
Hindu marriage, but is also an act to bring changes abruptly without any reason and this change
will have an impact on other aspects of Hindu society such as inheritance, adoption, and the
religious ecosystem, all of which are critically dependent on the religious 'Sanskar of Vivah.'50

Marriage occurs only between a male and a female to fulfil certain worldly and religious duties,
according to the Vedas (the sourcebook of Hinduism). In fact, the majority of Vedic mantras
recited during Hindu vivah or describing the marriage ritual refer to a biological male and

48
Hindu Marriage Act, 1955, No. 25, Act of Parliament,1955
49
TNN, Plea opposes same-sex marriages under Hindu Marriage Act, THE TIMES OF INDIA, Dec 4, 2021,
13:19 IST [Link]
marriage-act-hc-to-hear-case-in-feb/articleshow/[Link]
50
Akshita Saxena, Make Registration of Same-Sex Marriage Either Religion-Neutral Or Under Secular Law
Only, LIVE LAW, 3 Dec 2021 1:09 PM [Link]
marriage-registration-religion-neutral-secularism-article-25-186855

21
female. This has been the practice in almost all Hindu sampradayas since time immemorial,
with no variations in essence."51 According to Hinduism, marriage is a religious activity, not a
contract, and any attempt to tinker with the HMA in such a way that it affects Hindus' age-old
harmless beliefs will be a direct intrusion by the secular state into Hindus' religious rights,
which are guaranteed by the Constitution.52

[2.E.b] Muslim law and Christian marriage act

In strict compliance with the provisions of the Quran and Hadith of the Prophet (SAW), Islam
considers same sex marriage a punishable crime and a sin. This is because it clashes with the
natural order in which God created human beings as it brings destruction of the family and the
institution of marriage. 53

The Quran further said that everything was made in pairs to complement one another. Male
and female pairings are thus a natural part of human nature and the natural order.

Taking biblical laws and scholar's arguments into consideration, Since the original authors of
the Bible never mention 'homosexuals' or committed Christian homosexual couples, there
cannot exist a biblical prohibition of marriage rights for them.54 Marriage is not explicitly
defined in the Christian Marriage Act of 1872 as a partnership between a man and a woman.
However, there is again an underlying heterosexist assumption in the notion of marriage. For
eg; sec 60 of Christian Marriage Act, 1872 states “the age of man intending to be married shall
not be under 21-year and the age of woman intending to be married shall not be under 18 years.
55

It is contended that the petition for same-sex marriage under the HMA is not reasonable at the
time when the same is not permitted in the comparatively new religions under their Personal
Laws including Indian Christian Marriage Act, The Parsi Marriage and Divorce Act, Muslim
Personal Law (Shariat Application Act) and Anand Marriage Act.56

51
Wendy Doniger O'Flaherty, THE RIG VEDA: AN ANTHOLOGY: ONE HUNDRED AND EIGHT HYMNS
203-09 (Harmondsworth, Middlesex, England ; New York, N.Y. : Penguin Books, 1981)
52
Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law 66 ( Allahabad Law Agency, Faridabad, 24th edn.,
2020)
53
“Capital Punishment”(2022), Wikipedia, [Link] (6 April 2022)
54
Justin R. Cannon, The Bible, Christianity, and Homosexuality 25-30, (Los Angeles Times, 2008) (2005)
55
The Indian Christian Marriage Act, 1872, ACT NO. 15 OF 1872 (India)
56
The Anand Marriage Act, 1909, Act 48 of 1959

22
Thereby it is humbly submitted that the court should not recognize homosexual marriage since
society would not accept such a radical change and religious sentiments may cause harm to the
general public.

[2.E.c] Special marriage act (SMA),1954

It is submitted that SMA, defined marriage b/w a biological man and a biological woman takes
place either under the personal laws or codified laws.57 SMA is similar to HMA although the
statues are nearly identical. However, SMA would become mandatory if the parties intending
to marry are of different religion or faith. The rights of homosexual couples are still not
specifically mentioned.

It is asserted, based on the facts, that as of now, there are very few countries around the globe
have laws allowing same sex marriages to be solemnized. On the other hand, there are large
number of countries still does not recognize same sex marriages to become legalized. The
issues that have been used to justify not legalizing gay marriages are as follows:

Societal Morality: There is a "legitimate State interest" in restricting marriage recognition to

people of opposite sex. Considerations of "societal morality" are relevant in determining
whether a law is valid, and it is up to the Legislature to enforce such societal morality and
public acceptance based on Indian ethos.58

Sanctity of Marriage: Living together as partners or in a relationship with a same-sex individual

is “not comparable” with the “Indian family unit concept” of a husband, wife and children,
arguing that the institution of marriage has a “sanctity”.

Not in Consonance with Existing Laws: The fundamental right under art 21 is subject to legal
procedure, and it cannot be broadened to include the fundamental right for same-sex marriage
to be recognized under laws that explicitly prohibit it. The right to life is guaranteed by Article
21 of the constitution. This privilege can only be taken away by a law that is substantively,
procedurally, and substantively fair, just, and reasonable.59 Any meddling with existing
marriage laws would completely destabilize the country's careful balance of personal laws.

57
The Special Marriage Act, 1954, No.43 Act of Parliament (1954)
58
Sofi Ahsan, Centre opposes same-sex marriage in Delhi HC, says not comparable with ‘Indian family unit
concept, THE INDIAN EXPRESS, February 26, 2021 4:05:42 am [Link]
sex-marriages-legal-recognition-centre-7204303/
59
Samanwaya Rautray, Same sex marriages cannot be given legal sanction: Government, THE ECONOMIC
TIMES, Feb 25, 2021, 09:21 PM, [Link]
partners-not-comparable-with-indian-concept-government/articleshow/[Link]?from=mdr

23
[3] WHETHER THE COMMERCIAL SURROGACY CONTRACTS ARE
ENFORCEABLE OR NOT?

It’s Humbly submitted before the Hon’ble Supreme Court of Nilfgaard that, contract is an
agreement between two or more parties which has a binding nature, in essence, the agreement
with legal enforceability is said to be a contract60. It creates and defines the duties and
obligations of the parties involved61. Indian Contract Act 1872 codifies the legal principles
regarding the Law of Contract.

Section 10 of Indian Contract Act, 1872 mentions about the essentials which needs to be
fulfilled for making a valid contract are:

1. An agreement between the two parties. An agreement is the result of a proposal or an offer
by one party followed by its acceptance by the other.

2. Agreement should be between the parties who are competent to contract.

3. There should be a lawful consideration and lawful object in respect of that agreement.

4. There should be free consent of the parties, when they enter into the agreement."

5. The agreement must not be one, which has been expressly declared to be void.

*In the Indian context, owing to lack of legislative clarity on the state’s position on Surrogacy
Contracts, it becomes essential to understand the scope of enforceability of both, altruistic
and commercial surrogacy contracts concerning the Indian Contract Act, 1872

*Black’s Law Dictionary defines surrogacy as an ―agreement wherein a woman agrees to be

artificially inseminated with the semen of another woman ‘s husband. She agrees to conceive
a child, carry the child to term and after the birth, assign her parental rights to the biological
father and his wife62.

* SURROGACY CONTRACT:

*Surrogacy contract is the contract between a woman and an infertile couple in which the
lady agrees to carry an embryo during pregnancy in her uterus. A contract between a man
(the intentional father) and a woman (the surrogate mother) under which the surrogate mother
agrees to:

60
The Indian Contract Act, 1872, S. 2(h)
61
S. S. Ujjannavar, Law of Contract, Eastern Law House, New Delhi (2000), p.5.
62
Bryan A. Garner (ed.), Black’s Law Dictionary, West -Thomson Reuters, U.S.A. (6th ed.- 1990),
p.1445

24
(i) bear a child for the intentional parent, (ii) abandon all rights to her child.

The contract normally states that after the kid is born, the woman will renounce any parental
rights she may have to the couple. If the surrogate mother is married, her husband must agree
to the surrogacy contract's provisions as well. The surrogacy contract covers all aspects of the
intended parents, surrogate mothers, and child's connection. The contract defines the
surrogate's and intended parent's liability to the extent that either of the parties to the
agreement has consented.

Surrogacy can again be classified into two types i.e., commercial surrogacy and altruistic
surrogacy depending upon the financial transactions and relationships involved between the
surrogate mother and commissioning parents.

Commercial Surrogacy: In this type of surrogate motherhood, the surrogate mother receives
monetary compensation for her uterus, which is given to her in exchange for rent, this is legal
in India and is also known as baby-rearing or surrogacy.

Altruistic Surrogacy: Surrogates receive no financial compensation in Altruistic Surrogacy.

Only monetary medical expenditures are provided as compensation by commissioning parents.

In the instant case also, Mr. Atulya and Mrs. Anna came into traditional surrogacy contract
with Ms. Kritya through Hatter Clinic in December 2019 for a consideration of rupees
1000000/-, which means there was a commercial surrogacy contract between both of the
parties, but before the insemination would get conducted the ordinance was promulgated.

[3.A] ESSENTIALS WHICH NEED TO BE FULFILLED FOR A VALID

SURROGACY CONTRACTS:

Absence of Free Consent in Commercial Surrogacy Contracts

To constitute a valid contract, there must be meeting of minds i.e., consensus-ad idem. Section
13 of the Indian Contract Act provides that two or more persons are said to consent when they
agree upon the same thing in the same sense. Thus, when it is said that there should be meeting
of minds, it only means that the offer and acceptance must correspond. In a commercial
surrogacy arrangement, there are chances that woman is forced to become a surrogate due to
the economic compulsion, it’s not her free will that is encouraging her to do so, which means
that there is no free consent present in majority of commercial surrogacy contracts. As per the
Section 14, “consent is said to be free when it is not caused by Coercion, Undue influence,
Fraud, Misrepresentation, or Mistake & in commercial surrogacy contracts there are chances

25
that due to the economic compulsion women are made to enter into such contract through
coercion or undue influence, So, it is contended that in commercial surrogacy contract free
consent of the surrogate is not present.

Absence of a Valid consideration in Commercial Surrogacy Contracts

The parties to an agreement must be competent to contract. The capacity to enter a contract is
mentioned under Section 11 of the Indian Contract Act, [Link] to this Section, every
person is competent to contract who is of age of majority according to the law to which he is
subject, and who is of sound mind and is not disqualified from contracting by any law to which
he is subject. It means that the following three categories of persons are not competent to
contract: (a) Minors, (b) Persons of unsound mind, and (c) Persons disqualified from
contracting by some law to which they are subject. Another important element of a contract is
the presence of consideration which can be said to be the price for the promise63. Consideration
can be defined as the price of a promise, a return or quid pro quo, something of value received
by the promise as inducement of the promise. Section 25 of the Indian Contract Act, 1872
declares that an agreement made without consideration is void. Further this consideration must
be lawful. It is pertinent to note that consideration is not lawful as there is legislation64 which
is criminalising commercial surrogacy contracts, also in commercial surrogacy economic
consideration is present which clearly amounts to baby selling.

Absence of a lawful object in the Commercial Surrogacy Contracts

The object of an agreement must be valid. The object of the agreement would be unlawful if
it is forbidden by law or if permitted it would defeat the provisions of any law or is fraudulent
or causes injury to the person or property of any other or where it is immoral or opposed to
public policy.65 Every agreement in which the object is unlawful is void. It is to be noted that
the object of every surrogacy contract is to beget a child. It is submitted that commercial
surrogacy contracts are immoral and are opposed to the public policy and in fact such
contracts are exploiting the surrogate mother by putting economic compulsion on them. The
courts all over the world have also discussed the issue of legality of surrogacy contracts. The
first landmark surrogacy case of Baby M66 raised the question regarding the legality of
surrogacy contracts. Thereafter, this issue has been discussed in several cases67s in various

63
Fazaluddin v. Pnachanam Das, 1957 A.I.R. Cal. 92.
64
Surrogacy Arrangements Ordinance, 2019
65
The Indian Contract Act ,1872, No. 9, Section 23
66
In re Baby M, 537 A.2d 1227, 109 N.J. 396.
67
The Re C (A Minor) (Ward Surrogacy) (Baby Cotton Case) 1985 F.L.R.

26
countries. An act is considered as immoral if it is not adhering to ethical or moral principles
or is conflicting with generally or traditionally held moral principles. In India, a contract is
said to be lawful only if it satisfies all the essential ingredients of a contract and is made for a
lawful object. Section 23 of the Indian Contract Act, 1872 provides that every agreement of
which the object or consideration is unlawful is void. The Act also states that, the object or
consideration is unlawful if the contract is immoral68. Thus, it is essential to identify whether
the object of a surrogacy contract is moral or immoral. The word „immoral‟ is not defined in
the Indian Contract Act, 1872. However, the Supreme Court has discussed this term in
GherulalParakh v. Mahadeodas Maiya and [Link] Court observed that, the provisions
of Section 23 of the Indian Contract Act indicated that the Legislature intended to give that
word a restricted meaning. The limitation imposed on it by the expression “the Court regards
it as immoral” clearly indicated that it was also a branch of the common law and should,
therefore, be confined to principles recognized and settled by courts. Commercial surrogacy
contracts are void & illegal in nature as they are forbidden by law i.e., there is no lawful
object present & are also immoral in nature as they are not adhering to ethical & moral
principles, as such arrangements tend to be exploitative in nature as they are not only
encouraging baby selling but also diminish the dignity of women's reproductive capacities
and the inherent value of the children by commodifying them.

In Nilfgaard commercial surrogacy contracts are prohibited after the enactment of the SAO,
2019. Only surrogacy contracts of altruistic form are practiced, there is a complete ban on
commercial surrogacy contract as per the ordinance.

Major disagreement with commercial surrogacy contracts is that the such contracts are called
exploitative because these women lack the bargaining power as compared to the
economically well settled adoptive parents.

Also, as per the Surrogacy Arrangements Ordinance 2019, there is complete ban on
commercial surrogacy contracts which clearly states that essentials required for a valid
contract is not fulfilled i.e., the prevailing law in the country is clearly prohibiting such types

846; In the Matter of Baby M, 537 A.2d 109 N.J.396 (1988); Johnson v. Calvert, (1993) 851 P 2d 776
(Cal); Jaycee B. v. The Superior Court of Orange County, 42 [Link].4th 718 (1996), 49 Cal. Rptr.2d
694; Soos v. Superior Court of the State of Arizona, 182 Ariz. 470(1994); 897 p.2d 1356(Ariz. Ct.
App.1994); etc
68
The Indian Contract Act ,1872, No. 9, Section 23.
69
Gherulal Parakh v. Mahadeodas Maiya and Others. (1959) A.I.R. S.C. 781, 1959 S.C.R. Supl. (2) 2.

27
of contracts which means if any such contract will be made it will be termed as void as per
Section 2(g) of Indian Contract Act, 1872 & is illegal in nature.

[3.B] Operation of ex-post facto law & frustration of contract

In Government of Andhra Pradesh v. Ch. Gandhi 70, it was stated that if an ex-post facto law
is ameliorative it may be retrospective. In the instant case also to protect the thousands of
women from the vicious cycle of commercial exploitation the SAO,2019 prohibits
commercial surrogacy and specifies certain requirements for the procedure, which is in the
best interests of surrogate mothers and the children born as a result of the surrogacy process.
This is critical in order to protect their right to health as well as their liberty.

The doctrine of frustration of the contract is provided for in Section 56 of the Indian Contract
Act, 1872. Section 56 lays down the effect of subsequent impossibility of performance
wherein the subsequent happening of an event renders the performance of an act unlawful. In
this case, the contract becomes void. A contract is dissolved when legislative or
administrative intervention has so directly operated upon the fulfilment of the contract for a
specific work as to transform the contemplated conditions of performance71. Where the
intervention makes the performance unlawful, the courts will have no choice but to put an
end to the contract.72

In the present matter Mr Atulya and Miss Kritya signed an agreement for the commercial
(traditional) surrogacy. The parties agreed and the contract was signed with the consideration
of Rs. 10 lakhs. However, Surrogacy Arrangements Ordinance, 2019 banned both
commercial and traditional surrogacy. Thus, the contract becomes void by the subsequent
impossibility of performance by legislative intervention in this case. Also, it is contended that
the fulfilment of the contract has not taken place yet since artificial insemination was not
conducted.

[4] WHETHER THE CUSTODY SHOULD BE GIVEN TO INTENDED PARENTS?

It is humbly submitted before the hon’ble supreme court that in the state of Kimanu, a state in
union of Nilfgard, Mr. Suhas and Mr. Suhasani entered into a commercial surrogacy contract

70
Government of Andhra Pradesh v. Ch. Gandhi, (2013) AIR SC 2113
71
STC v. Union of India, (1994) Supp (3) SCC 40; Rose Valley Real Estate & Construction Co v. United
Commercial Bank, (2008) AIR Gau 38
72
Boothalinga Agencies v. V.T.C. Poriaswami Nadar, (1969) AIR SC 110

28
with Mrs. Sagrika. Mrs. Sagrika was an illiterate woman who was unaware of the ramifications
and basic realities of contract enforceability. Also, we cannot consider Mrs. Sagrika's consent
to be free consent because she was compelled to become a surrogate mother due to economic
compulsion; thus, it can be seen that it is not her free will that encourages her, but the
responsibility to incur her family expenses and achieve the opportunity to have a child once in
a lifetime through such work. Such an arrangement can be described as exploitative since Mrs.
Sagrika have less bargaining power than monetarily well-off intended parents.

The SAO,2019 seeks a ban on both commercial surrogacies. Thus, the contract becomes void
by the subsequent impossibility of performance by legislative intervention in this case. It is
thus contended that by applying the doctrine of frustration in the present case, the custody of
the child may not be given to Mr Suhas and his partner since the contract become void by the
provisions of the SA0,2019.

We invalidate the surrogacy contract because it conflicts with the law and public policy of this
State. While we recognize the depth of the yearning of infertile couples to have their own
children, we find the payment of money to a "surrogate" mother illegal, perhaps criminal, and
potentially degrading to women.73

In the famous leading case of Baby m74 the court ruled that the contract was invalid as a matter
of law because it violated statute and was against public policy. The court found who are the
at private placement adoption was disfavoured, that the payment of money made the contract
illegal and possibly criminal under N.J. Stat. Ann. § 9:3-54, and that it was vested with an
element of coercion. Further, the termination of defendant's parental rights called for by the
surrogacy contract and ordered by the trial court failed to comply with statutory requirements.
The court also ruled that no one can contractually abandon one's parental rights. and that
because the termination was invalid, the adoption was invalid.

Based on the aforementioned contentions, it is subsequently contended that Petitioner no.1

must not receive custody of the child born through surrogacy in the present matter since the
contract subsequently becomes void due to ‘doctrine of frustration’ provided u/s 56 of The
Nilfgard Contract Act, 1872.75

73
Kelly Oliver, Marxism and Surrogacy, Vol. 4, No. 3, Ethics & Reproduction (Autumn, 1989),
74
Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988)
75
The Indian Contract Act, 1872, Act No. 9 of 1872

29
Who are the LEGAL PARENTS?
In England and Wales, or to precise in all of the UK, the birth mother has a legal right over the
child. Not only the birth mother but also her civil partner has a right over the child born with
the help of surrogacy, even both of them are genetically related to the surrogacy child. Transfer
of guardianship is done through adoption if the intending parents are genetically related to the
surrogate baby, if not, transfer of guardianship happens through court order.76 Even in
Netherlands, the legal guardian of surrogate child is the surrogate mother. Transfer of
guardianship to intending parents is through adoption, irrespective whether genetically related
or not.77 In Australia as well, the birth certificate of the child will have the name of the surrogate
and her legal partner as the legal parent of the child.78

In light of the above contentions, it is submitted that there is no specific legislation that defines
legal parents in the case of surrogacy, but there are ICMR guidelines, and some suggestive
readings are contradictory in nature. As a result, before granting surrogate child custody, one
must consider the consequences of the act. because during the nine months that the child is in
the mother's womb, the natural bond of mother-child love is formed. The mother develops a
natural love for the 'life' in her womb, which is aptly referred to as the holy bond of mother-
child love. But it would be better said that the child is a part of the mother’s body, a life that
originates from her body the child is replica of the mother’s love, emotion and attachment. 79
This is one of the strongest arguments given by critics.80

They say that surrogacy challenges this natural bond of love and affection between the mother
and the child.81 When it comes to the surrogate mother, they have to sacrifice on this incredible
bond, and give the child to the commissioning parents. This gives birth to questions such as
“What if the surrogate gets attached to her child and refuses to execute the contract?” 82 “Isn't
it unethical to break nature's true bond of love and give the child to someone else?” Let us take
a look at some answers. A study by the Family and Child Psychology Research Centre at City

76
HFEA, Legal Parenthood and Surrogacy Parenthood Consent Form Guide, Human Fertilization and
Embryology Authority (November 19, 2013), Surrogacy | HFEA
77
Corine Hendriks, New legislation on surrogacy desperately needed, LEIDEN UNIVERSITY, 17 January
2020, New legislation on surrogacy desperately needed - Leiden University ([Link])
78
Neelam Chhagani, What If Surrogate Wants to Keep the Baby? IVF CONCEPTIONS, What If Surrogate
Wants To Keep The Baby? | IVF Conceptions
79
Jonathan Montgomery, Constructing a family after a surrogate birth, The Mordern Law Review, Vol. 49, No.
5 at P. 639.
80
“The Embryology Debate” (1985) 38 Breaking Chain sp 4-5.
81
Ruby L. Lee, New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation, 20
HASTINGS
WOMEN'S LJ 279 (2009).
82
Philip J. Parker, “Motivation of Surrogate Mothers: Initial Findings” (1983) 140 Am. J. Psychiatry 117;

30
University, London, UK in 2002 concluded that surrogate mothers rarely had difficulty
relinquishing rights to a surrogate child and that the intended mothers showed greater warmth
to the child than mothers conceiving naturally.83 Putting it more practically, it is the dream of
any woman to have her own child. If she is unable to conceive her own child, the dream
quashes. However, when she gets another opportunity by way of surrogacy to have a child from
her own genes, she will be grateful and will in turn be incredibly attached to that child. She
will show more love and affection than an ordinary mother conceiving a baby.

It is contended that Mrs. Sagrika's attachment to the baby grew stronger after she gave birth to
him. because she was unable to conceive the child previously due to Mr. Samark's infertility.
The child's emotional attachment outweighs any contract or deal provisions.

The evidence having clearly proved such custody has to be in the best interests of the infant,
we avoid both the termination of the surrogate mother's parental rights and the adoption of the
child by the wife/stepparent. We thus restore the "surrogate" as the mother of the child. We
remand the issue of the natural mother's visitation rights to the trial court, since that issue was
not reached below and the record before us is not sufficient to permit us to decide it de novo.

83
Fiona MacCallum et al, Surrogacy: The experience of commissioning couples Human Reproduction, 18
Human
Reproduction 1334, 1336-1340 (2003); Vasanti Jadva et al., Surrogacy: the experiences of surrogate mothers,
18 Human Reproduction 2196, 2198-2202; Susan Golombok et al., Families Created Through Surrogacy
Arrangements: Parent-Child Relationships in the 1st Year of Life. 40 Developmental Psychology 400, 404-410
(2004)

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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsels on behalf of the Respondents humbly pray before this Hon’ble Supreme
Court that it may be pleased to adjudge

[I] To uphold the constitutional validity of the Surrogacy Arrangements Ordinance, 2019

[II] To declare commercial surrogacy contracts invalid. Commercial surrogacy contracts don’t
fulfil the necessary essentials specified in Sec10 of Indian Contract Act & are against the public
order and to hold that the contract in the instant cases is frustrated

[III] To give the custody of the child to surrogate mother in the 4th issue

AND/OR

Pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Respondents shall as duty
bound ever pray.

Sd/-
_____________________
__

Counsels for
Respondents

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