TEAM CODE:

BEFORE

THE HON’BLE HIGH COURT OF DELTA, INDIVA

IN THE MATTERS OF:

MS.X ....PETITIONER

VERSUS

MR. AND MRS. Y AND ORS ....RESPONDENTS

ON SUBMISSION

THE HON’BLE HIGH COURT OF DELTA, INDIVA

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIVA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES....................................................................................................4

STATEMENT OF JURISDICTION...........................................................................................6

STATEMENT OF FACTS …………………………..............................................................7

STATEMENT OF ISSUES..…………………………….........................................................8

SUMMARY OF ARGUMENTS …………………………......................................................9

ARGUMENTS ADVANCED……………………………......................................................10

PRAYER……………….....................................................................................................18

Memorandum on behalf of Respondents

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

AIR All India Reporter
Anr. Another
Art. Article
V. Versus
FR Fundamental Right
Hon'ble Honourable
Ors. Others
Pg. Page
S. Section
SC Supreme Court
SCC Supreme Court Cases
Vol. Volume
SCR Supreme Court Review
FC Federal Court

Memorandum on behalf of Respondents

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INDEX OF AUTHORITIES

Cases
1. BRIJ BHUSHAN V. STATE AIR 1950 SC 129………………………………13
2. INDIAN EXPRESS V. UOI AIR 1986 SC 515…………………………………..16
3. MRF LTD V. INSPECTOR OF KERALA (1998) 8 SCC 227 ……………….16
4. P.N. KUMAR V. MUNICIPAL CORP. DELHI (1987) 4 SCC 609…………10
5. RAMJILAL MODI V. STATE OF UP AIR 1957 SC 620…………………….13
6. ROMESH THAPPAR V. STATE OF MADRAS AIR 1950 SC 124……12,15,17
7. SATISH CHANDRA & ANR V. REGISTRAR (1994) 4 SCC 332 (3)…….10
8. STATE OF MADRAS V.G. ROW (1952) SCR 597,607………………………14
9. TATA ENGINEERING V. STATE OF BIHAR AIR 1965 SC 40…………..11
10. UNITED PROVINCES V. ATIQA BEGUM AIR 1941 FC 16…………………17
11. V. K. JAVALI V. STATE IF MYSORE AIR 1966 SC 1387…………………15
12. VIRENDRA V. STATE OF PUNJAB AIR 1957 896………………………….13,15

Statutes
1. The Constitution of Indiva, 1950
2. The Surrogacy Act, 2016
3. Indian Contract Act, 1872
4. Specific relief of Act 1963

Books
Jain, M P, ' Indian Constitutional Law ', 8th Ed., Lexis Nexis (2018)
Avtar Singh ‘Contract and Specific Relief’,
Basu .D .D “Introduction to Constitution of India”
Justice GP Singh. ‘Principles of Statutory Interpretation’, 13th Edition (2012)

Memorandum on behalf of Respondents

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Dictionaries
Black's Law Dictionary, 10th Ed. West Group (2014)
Oxford's Dictionary
Cambridge Dictionary

Online Sources
www.scconline.com
www.manupatra.com
www. westlawindia.com

Memorandum on behalf of Respondents

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STATEMENT OF JURISDICTION

The respondents in the instant matter humbly submits before the Hon’ble Supreme Court
of India under Article 321 of the Constitution.

1
32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2) Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause (2).

Memorandum on behalf of Respondents

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STATEMENT OF FACTS

Facts for the respondent

Mr. and Mrs. Y were married in 1998 in Indiva in a traditional Hindu wedding and have been
living in Australia since 2005. The couple had infertility issues and was unable to conceive a
child .They approached the line of relatives requesting them to be surrogate mother. Since it was
considered to be borderline incest in their community, no one had agreed to do it.

EHRC is a world renowned centre for In Vitro Fertilization with clientele from across the globe.
Chairman of EHRC , Dr.K is a specialist in the field of human embryology. Mr. and Mrs. Y got
in touch with EHRC , through Ms..X who is an adopted child of Mr. Y`s mother`s first cousin.

After a series of talks with the doctors at the EHRC, Mr. and Mrs. Y flew down to Indiva and
spoke , negotiated and agreed on the terms and conditions as a part of the surrogacy agreement
with Dr. K which included the costs of procedure and state of surrogate mother.

Ms. X was approached by Dr. K to carry the child of Mr. and Mrs. Y. She showed her
willingness to be the surrogate mother. Ms. X had delivered a healthy baby girl and this positive
experience motivated her to agree to this surrogacy agreement. She was very delighted to spend
time with her extended family.

Since Ms. X was unable to read English the terms were read out to her and translated to her in
vernacular language. After finalizing the contractual terms and conditions both parties signed the
agreement

A week before the commencement of the procedure, ms x made a request to Mr. and Mrs. Y to
help, If possible her daughter. Since Mr. and Mrs. Y have engaged in similar kinds of benevolent
work in the past, they agreed.

Both the parties approached the appropriate authority under surrogacy act 2016 ,the surrogate
mother and the intending couple for the eligibility certificate and proven infertility respectively
which was granted by the authority.

After IVF stands successful in round one, early in the pregnancy, ms x grew attached to the baby
emotionally. As times goes by her anxiety of separation from the unborn child grows. In her fifth
month she says she wants to discontinue with the pregnancy as a result of mental health issue .Dr
k was able to bring out the real reason that ms x wants to keep the baby and excuse was only to
get away with the hospital and agreement , to raise the baby by herself.

Memorandum on behalf of Respondents

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The intending couple tries their level best to convince her otherwise. They flew down to Indiva
and tried making talks with her. Even after numerous meetings the outcome ended in deadlock,
with last meeting on 2nd august which concluded in heated arguments between Ms. X and
intending couple. With failure of talks, she was asked to join her employer EHRC back. She was
summoned few times by Dr. K to reconsider and reconcile the matter.

After agreeing and then disagreeing to the agreement, Ms. X had now filed a case before high
court of Indiva claiming that this was a commercial surrogacy and praying the punishment for
the intending couple and EHRC .

STATEMENT OF ISSUES

ISSUE I : WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION MAINTAINABLE?

ISSUE II : WHETHER THE STATE ACT VIOLATES THE FUNDAMENTAL RIGHT

UNDER ARTICLE 19 (1) (a) “ FREEDOM OF SPEECH AND EXPRESSION.

ISSUE III: WHETHER IMPUGNED ACT COMES UNDER THE PURVIEW OF

REASONABLE RESTRICTION UNDER ART.19 (2).

Memorandum on behalf of Respondents

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SUMMARY OF ARGUMENTS

ISSUE I : WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION MAINTAINABLE?

It is most respectfully averred that the writ petition filed by Dail Dhamaka Newspaper is not
maintainable. Firstly, Alternative remedies under Art. 226 was not exhausted by the petitioner.
Secondly, Corporation cannot invoke fundamental right under Art.19.

ISSUE II : WHETHER THE STATE ACT VIOLATES THE FUNDAMENTAL RIGHT

UNDER ARTICLE 19 (1) (a) “ FREEDOM OF SPEECH AND EXPRESSION.

It is humbly advocated that the Act enacted by the State does not violate fundamental Right
under Art. 19 (1) (a). Firstly, Freedom of Press is not a absolute right. Secondly, The Act has
been legislated for the purpose of public order and Safety.

ISSUE III: WHETHER IMPUGNED ACT COMES UNDER THE PURVIEW OF

REASONABLE RESTRICTION UNDER ART.19 (2).

It is humbly averred that the impugned fall under the purview of Reasonable Restriction. Firstly,
Imposition of the restriction on the grounds of public order under 19(2). Secondly, The
impugned act and public order have direct connection. Thirdly, The enactment is not beyond
state’s legislative Competence.

Memorandum on behalf of Respondents

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ARGUMENTS ADVANCED

Issue 1

Challenge the eligibility certificate issued by appropriate authority based on ‘close

relatives’.

It is humbly averred before the hon’ble High court of delta that the eligibility certificate issued
by the appropriate authority is valid. As there is no definition of close relative in the act, the
appropriate authority has to look into the purpose and objective of legislation upon the fulfilment
of which the eligibility certificate is issued in the present case. The rationale behind this is;

[1] Petitioner is a close relative of the intending couple.

[2] The eligibility certificate given by the appropriate authority is valid

[1] Petitioner is a close relative of the intending couple.

It is most humbly submitted to this hon`ble court that ms x is a close relative of mr and mrs y.

The phrase close relative should not be substituted for any other phrase for their mere presence
of meanings in the other statutes. As stated by the privy council we cannot aid the legislature`s
defective phrasing of an act, we cannot add or mend and, by construction make up deficiencies
which are left there2.Hence the phrase used should be interpreted as it is.

The phrase close relative is a technical phrase used in this statute, which has got a technical sense
of its own. In the guiding rules and rule of literal construction it is evident that the technical
words should be used in technical sense itself. It is contrary to all rules of construction to read
words into an act unless it is absolutely necessary to do so3. Hence the phrase should be read as it
is without any addendum and no scope for its substitution should be given.

The definition of close relative given in the Companies act and other commercially related acts
should not be considered because the specific meaning in different arenas varies to a large extent.
LORD JOWITT ,L.C has stated the rules as follows: “ It is, I think legitimate in construing a
statute relating to a particular industry to give to the words used a special technical meaning if it
can be established that at the date of passing of the statute such special meaning was well
understood and accepted by those conversant with industry4 .This severes the attachment of the
meaning of the phrase close relative used in other unrealatable and impertinent legislations. As
pointed by LORD ESHER, M R : “If the Act is one passed with reference to a particular
trade,business or transaction and words are used which everybody conversant with that

2
Crawford v. Spooner ,(1846) 6 moore PC 1,pp. 8, 9:
3
Renula Bose (Smt.) v. Rai Manmathnath Bose, AIR 1945 PC 108. P. 110 :
4
London and North Eastern Rly. Co. v. Berriman, (1946) 1 ALL ER 255, p.257:

Memorandum on behalf of Respondents

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trade,business or transaction knows and understands to have a particular meaning in it, then the
words are to be construed as having that particular meaning5. The reason is that it is they who are
concerned with it , and, it is the sense in which they understand it , which constitutes the
definitive index of legislative intention6

In this particular case the doctor fraternity including Dr. K who is a specialist in the field of
human embryology , chairperson and members of the appropriate authority7 are of the opinion
that close relative has a wider meaning than its usage in general and this is evident from their
approval of the eligibility certificate to Petitioner .

The intent of legislature in enacting the phrase close relative in the legislation is because altruism
is more often encountered within families8. The families in Hindu community include cousins,
adopted children, legitimate and illegitimate children etc. Since the scope of the term ‘family’ is
large under Hindu law, it is to be inferred that the phrase close relatives is used in a much wider
manner and has an extensive meaning.

The counsel also submits that the countries where surrogacy has its legal status such as Ukraine ,
Russia and major parts of USA do not retain the phrase close relative in any of its qualifications.
Restrictions on who can act as a surrogate are commonly included in surrogacy statutes, and
proponents of such restrictions cite them as reasonable safeguards that minimize the risk of
exploitation while still allowing competent and willing women to serve as surrogates. While
specifications as to age, parity, and health of the surrogate are commonly included in statutes
regulating surrogacy.

It is humbly submitted to this hon`ble court that the phrase Close relative should be liberally
interpreted due to the following reasons:

A. The international guidelines and key recommendations9 from the report presented during
the 37th session of the Human Rights Council in March 2018 does not expressly or
impliedly mention about the presence of close relative being one of the qualification.
B. Its absence in the internarional guidelines and statues of other countries such as Russia10 ,
USA11 , Ukraine12 .
C. The presence of already present stringent qualifications under section 4(iii)(b) such as age
of the surrogate mother, no. of times one can be surrogate mother, certificate of medical

5
Unwin v. Hanson , (1891) 2 QB 115 (CA), p. 119:
6
India Aluminium Cables Ltd. v. Union of India , (1985) 3 SCC 284, p. 290:
7
See section 32 of Surrogacy Act ,2016
8
Long MC, Krause E. Altruism by age and social proximity. Ponti G, ed. PLoS ONE. 2017; 12(8):e0180411.
doi:10.1371/journal.pone.0180411.
9
https://www.ohchr.org/EN/Issues/Children/Pages/Surrogacy.aspx
10
https://www.growingfamilies.org/surrogacy-in-russia/
11
Surrogacy Law and Policy in the U.S ,Report of the Columbia Law School Sexuality & Gender Law Clinic (May
2016) p. 48 Para 2.
12
https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/

Memorandum on behalf of Respondents

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and psychological fitness for surrogacy from registered medical practitioner , constraint
on having atleast one child of her own and restriction on providing her own gametes.
D. The interpretation of phrase close relative in a narrow manner will lead to absurdity and
vagueness since it reasonably becomes infeasible for the most of the intending couples to
have a child out of surrogacy since in some communities like that of Hindu, surrogacy in
too close relations is considered as borderline incest.

Due to the aforementioned reason it is humbly submitted to this hon`ble court to interpret close
relative liberally and extensively as its meaning in the context of concerned law suggests.

[2] The eligibility certificate given by the appropriate authority is valid .

It is humbly submitted that in the section 2(zf) which define surrogate mother as “a woman
bearing a child who is genetically related to the intending couple, through surrogacy from the
implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of
clause (iii) of section 4;13”, is ambiguous in nature, because it doesn’t clearly define as to who
should be genetically related to the intending couple. It has turned more absurd with the
parliamentary report having two contradictory statements as follow:

Firstly the surrogate mother carries the child which is genetically related to the intending
couple14. So the relation referred here is between child and intending couple.
Secondly the opposition by Dr. Rita Bakshi, Vice-President, INSTAR(Indian Society of Third
Party Assisted Reproduction) to some of the clauses of the Bill relating to the ‘close relative’ and
the surrogate being genetically related to the intending couple15 .

It is humbly submitted that if the second interpretation of genetical relation is considered , it

results in absolute absurdity because the all the organisms of are genetically related directly or
indirectly .If the first interpretation of the genetical relation is considered , it results in less
absurdity and it harmonizes with the object of the statute.

In the words of SHAH, J : “It is a recognised rule of interpretation of statues that expressions
used therein should ordinarily be understood in a sense in which they best harmonise with the
object of the statue, and which effectuate the object of the legislation.16 Therefore when two
interpretations are feasible the court will prefer that which advance the remedy and suppresses
the mischief as the legislature envisioned17. Preference should be given to that construction
which avoids inconsistency, absurdity, injustice, hardship ,anomaly and serious inconvenience .

13
See section 2(zf) of Surrogacy Act,2016.
14
http://164.100.47.5/newcommittee/reports/EnglishCommittees - a parliamentary report on Surrogacy Bill,2016
(2.6) p. 3:
15
Ibid (4.6) p.6: line 5.
16
New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207, p. 1213 :
17
Carew and Company v. Union of India, AIR 1975 SC 2260, p. 2270:

Memorandum on behalf of Respondents

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The first interpretation should be considered by the hon`ble court that the child and not the
surrogate mother should be genetical related to the intending couple.

It is humbly submitted that since the appropriate authority consists of fraternity from medical
department18 and in their reasonable view it is found that petitioner is a close relative of the
intending couple. This is to be considered the definitive index of the legislation with the
unprovided and wanting definition of close relative.

It is most humbly submitted that the eligibility certificate issued by the appropriate authority to
Petitioner was hence not in contravention of any of the provisions of the act and should be held
to be valid in the view of this hon`ble court.

Issue 2;

Challenge the stand of commercial surrogacy taken by Ms. X

It is humbly submitted before the hon’ble High court of delta that the petitioner has failed to
prove the stand of commercial surrogacy. The surrogate mother has made frivolous assertions to
prove this act to be a commercial surrogacy. However, such assertions are made on baseless
grounds. Thus the present case is not a commercial surrogacy but Altruistic surrogacy. The
rationale behind this is;

[1] The agreement is not commercial in nature.

[2] The Elements of altruistic surrogacy is satisfied.

[1] The agreement is not commercial in nature.

For an agreement to be called as an agreement of commercial surrogacy the essentials laid down
in the definition of the commercial surrogacy has to be fulfilled; The Act of commercial
surrogacy has been defined under Sec 2(f) of Surrogacy Act 2016, “commercial surrogacy"
means commercialisation of surrogacy services or procedures or its component services or
component procedures including selling or buying of 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.

18
See section 32(3) of Surrogacy Act,2016;

Memorandum on behalf of Respondents

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[1.1] The cost of surrogate mother being unable to work during duration of pregnancy

The petitioner’s contention is that the cost of surrogate mother being unable to work during the
duration of pregnancy is an essential of the commercial surrogacy, which cannot be accepted, as
this particular clause of agreement which is in question falls under the exceptions to the
commercial surrogacy i.e. insurance coverage.

According to Sec 2(q) of Surrogacy Act of 2016,“insurance" means an arrangement by which a

company, individual or intending couple undertake to provide a guarantee of compensation for
specified loss, damage, illness or death of surrogate mother during the process of surrogacy.

One of the conditions laid down by the intending couple to the surrogate mother is that the
surrogate mother will not work during the entire duration of pregnancy. Evidently, the surrogate
mother is suffering a loss of her livelihood. Thus it is a moral duty of the intending couple to
provide her a livelihood. Furthermore this is compensatory in nature and not commercial.
Thereafter it is also been recommended that compensatory surrogacy is feasible and the formula
in Assisted Reproductive Technology (ART) Bill regarding the remuneration/ compensation to
the surrogate mother should be adopted19.

[1.2] Act of intending couple in helping the petitioner’s daughter’s stay in Australia.

The factual matrix explicitly mentions that the intending couple have been involved in the
benevolent work of helping the relatives and friend’s children stay in Australia in the past. This
particular act of the intending couple was initiated by the surrogate mother and not the couple
therefore the act was carried on upon the request made by the surrogate mother. It is also to be
noted that the help rendered by the intending couple was a week before the medical procedure
for surrogacy started. This also did not amount to the profit of the surrogate mother as the
daughter stay was anyways sponsored by the International school.

Thus this particular act of the surrogate mother does not fall under the monetary incentives in
kind as mentioned in Sec 2 (f) of the Act.

[2.3] The Intending couple’s proposition to pay money in lieu of pregnancy

The intending couple’s proposition to pay surrogate mother, money in lieu of her pregnancy was
never the part of the surrogacy agreement. The intending couple were distraught by the refusal of
surrogate mother to relinquish the baby. The proposition made by the intending couple was just
the result of the mental trauma of barren parents and their desperation to have the baby which is
already taken the shape of flesh and blood in the body of surrogate mother.

[2] The Elements of altruistic surrogacy is satisfied

102nd The Rajya Sabha’s parliamentary standing committee on Health And Family Welfare
19

Memorandum on behalf of Respondents

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According to Sec2(b) of Surrogacy act of 2016; “altruistic surrogacy" means the surrogacy in
which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except
the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate
mother, are given to the surrogate mother or her dependents or her representative

According to Oxford’s Dictionary the meaning of the word Altruistic is “Showing a disinterested
and selfless concern for the well-being of others; unselfish”. The present factual matrix mentions
that the surrogate mother was delight to act as surrogate mother and to get time off work and
spend time with her extended family, which reveals the willingness of the women to act as
surrogate mother. The interactions between intended couple and Surrogate mother were cordial
and warm.

Furthermore, the terms of the agreement has covered all the necessary costs with regards to the
medical expenses, insurance, recuperation etc. And as already mentioned the terms of the
agreement are well within the bounds of the definition of altruistic surrogacy. Thus the present
case of surrogacy best fits into the definition of the Altruistic surrogacy.

The RAJYA SABHA’s PARLIAMENTARY STANDING COMMITTEE also in its ONE

HUNDRED SECOND REPORT on HEALTH AND FAMILY WELFARE has opined the
major objectives of The Surrogacy (Regulation) Act, 2016 as follows:-

‘(i) to regulate surrogacy services in the country;

(ii) to provide altruistic ethical surrogacy to the needy infertile Indian couples;

(iii) to prohibit commercial surrogacy including sale and purchase of human

embryo and gametes;

(v) to prohibit potential exploitation of surrogate mothers and protect the

rights of children born through surrogacy20.’

‘The concept of altruistic surrogacy and suggested that there should be some kind of minimum as
well as maximum capping on compensation amount to be paid to a surrogate mother. She was of
the view that focus should also be on rights of intending parents along with the rights of
surrogates’21.

The factual matrix reveal that the intending couple has fulfilled all the essentials of the contract
as well as altruistic surrogacy, thus neglecting the the intending couple’s right to have progeny
will defeat the one of the objectives of the surrogacy Act 2016 i.e. to provide altruistic ethical
surrogacy to the needy infertile Indian couples;

20
21

Memorandum on behalf of Respondents

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It should also be taken into consideration that the hon’ble courts in Indiva have held that the right
to progeny is one of the fundamental rights which comes under the umbrella of Art 21 of
Constitution of Indiva. Art 21 of Constitution of Indiva States that “ No person shall be
deprived of his life or personal liberty except according to procedure established by law”.

In the case of US Supreme Court in Jack T. Skinner v. State of Oklahoma22 , which characterised the
right to reproduce as “one of the basic civil rights of man”. In light of this decision the Indian court in
case of B.K. Parthasarathi vs. State of Andhra Pradesh23, held that right to reproductive autonomy
is an integral facet of the right to privacy that is provided under Art 21. Hence it is submission of
the respondents to consider this agreement to be altruistic in nature and protect the fundamental
rights of the intending couple i.e is right to progeny. If reproductive right gets constitutional
protection, surrogacy which allows an infertile couple to exercise that right also gets the same
constitutional protection24.

Analysis of the above mentioned section on commercial surrogacy and altruistic surrogacy in
pari passu with the terms of the agreement in the factual matrix reveals no violation in the
provisions of the Surrogacy Act of 2016. Therefore it is the kind submission of the respondents
that the stand of commercial surrogacy taken by the petitioner is baseless. Thereby, it is humble
submission of the respondent that the present case of surrogacy is to be considered as altruistic
surrogacy.

Issue 3

Enforceability of the surrogate agreement Between Ms. X and Mr. And Mrs. Y under
section 6, of the Surrogacy Act 2016.

It is humbly submitted by the counsel on behalf of the Respondents before the Hon’ble High
Court of Delta that the Surrogacy Agreement between Ms. X and Mr. and Mrs. Y is a valid
agreement and it can be enforced under section 6 of the Surrogacy Act, 2016.

It is humbly submitted before the Hon’ble court that the Surrogacy Agreement between Ms. X
and Mr. &Mrs. Y is a valid agreement, and with an extension, is a valid contract. Section 10 of
the Indian Contract Act, 1872, lays down the essentials for an agreement to be deemed as a
contract. All the requirements as stipulated by section 6 of the Surrogacy Act, 2016 is also
complied with by the Respondents. The rationale behind this is;

[1] Fulfilment of the requirements under section 6 of the Surrogacy Act, 2016 -

22
23
24

Memorandum on behalf of Respondents

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[2]The surrogacy agreement as a valid contract-

[3] Plea for the specific performance of the contract-

[1] Fulfilment of the requirements under section 6 of the Surrogacy Act, 2016 -

Section 6 can be referred to from the Act. Following the rules laid down in Section 6 of the
Surrogacy Act, 2016, all the implications and risks involved in the surrogacy procedure were
clearly explained by the respondents to the petitioner Ms.X, in the language she understood.
Also, wherever she had any clarifications, all were cleared by the intending couple and EHRC.
Therefore, it can be understood that when she gave her consent to the surrogacy procedure, she
was well informed of all the consequences.

The Report of a Study to Understand the Legal Rights and Challenges of Surrogates from
Mumbai and Delhi, National Human Rights Commission, draws attention to the fact that under
Section 10 of the Contract Act, all agreements are contracts, if they are made by free consent of
parties competent to contract, if it is for a lawful consideration and with a lawful object, and are
not expressly declared to be void. Therefore, the report propounds that if any surrogacy
agreement satisfies these conditions, it is a contract.

[2]The surrogacy agreement as a valid contract-

It is humbly submitted that there is a valid agreement between the petitioner and respondents. In
light of all the essentials of a valid contract as provided under the Indian Contract act, 1872 being
fulfilled, the surrogacy agreement between the respondents and the petitioner is a valid contract.

The rationale behind this is that

[2.1] That there was a valid consent.

[2.2] There was a valid consideration.

[2.3] That the legality of the object is fulfilled.

[2.4] That no law prohibits surrogacy in India.

Memorandum on behalf of Respondents

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[2.1] was a valid consent:

In the instant matter, that the consent of the surrogate mother can be inferred from her
willingness to be a surrogate mother. Also, Ms. X was motivated by the positive experience of
having delivered a child already as a healthy baby girl. Thus, any claim negating free consent by
the surrogate mother can be eliminated.

[2.2]There was a valid consideration:

As per section 2 (d) of the Indian Contract Act, 1972:

“When, at the desire of the promisor, the promisee or any other person has done or abstained
from doing, or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise.”

One of the terms of the Surrogacy Agreement between the respondents and the petitioner points
out to the fact that the respondents had promised to take care of the cost of the surrogate mother
being unable to work during the duration of the pregnancy. Although the respondents have
promised it in absolute goodwill towards the surrogate, yet, in this instance, it can be considered
as a valid consideration in the form of insurance and other perquisites.

According to Explanation 2 of Section 25 of the Act:

“An agreement to which the consent of the promisor is freely given is not void merely because
the consideration is inadequate; but the inadequacy of the consideration may be taken into
account by the Court in determining the question whether the consent of the promisor was freely
given.”

Here, the question regarding the validity of the consideration does not arise, and it is considered
valid. If the court finds the consideration inadequate, then, the court can use it only to determine
the free consent, and not question the consideration itself.

[2.3]Legality of object:

The Universal Declaration of Human Rights 1948 upholds the right to marry and found a family
as a basic Human Right. In B.K Parthasarathi v. State of Andhra Pradesh, the Andhra Pradesh
High Court held that “the right of reproductive autonomy” is an integral facet of the “Right to
Privacy”, that is provided under article 21 of the Constitution of India. Therefore, in this
situation, refusing to give the baby born out of the Surrogacy Agreement would amount to

Memorandum on behalf of Respondents

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denying the intending couple the right to have a child, especially when the entire surrogacy
procedure is without flaws. Hence, the object of the agreement, surrogacy, is a legally sound.

In Baby Manji’s case, the Supreme Court directly considered the issue at hand, and by doing so,
the court accepted the legality of surrogacy in India. Also, the existence of an entire Act to
regulate surrogacy in Indiva speaks to the legality of the surrogacy procedure in India. Hence, it
can be concluded that the agreement between the respondents and the petitioner is a valid
Surrogacy Agreement.

[2.4]No law prohibiting surrogacy in India-

Surrogacy in India is legitimate for another reason that no Indian law prohibits surrogacy. To
determine the legality of surrogacy agreements, the Indian Contract Act would apply and
thereafter the enforceability of any such agreement would be within the domain of section 9 of
the Code of Civil Procedure.

Section-9 of CPC.
“Courts to try all civil suits unless barred .- The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Explanation 1.—As suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decision of questions as
to religious rites or ceremonies.
Explanation Il—For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such
application, the Court may grant such interim relief as it may consider necessary, pending
determination by it of the preliminary issue as to be jurisdiction.” - Maharashtra Act (65 of 1977)
(wet. 19-12-1977).”

The 2008 ART Bill also, in section 2(t) and section 2(v) also acknowledges the legal
enforceability of the agreement. This ensures that surrogacy agreements are on par with any
other contract under the Indian Contract Act, 1872.

Re The Matter Of TT (A Minor), Re P (Surrogacy: Residence) the utmost significance of the case
is summed up by stating that “the surrogate child is born as a result of the surrogacy agreement”,
thus implying all the conditions, situations, stakeholders or parties, the promises undertaken by
them respectively leading to the birthing of surrogate child. Hence, in any surrogacy procedure,
following the agreement entered into by the parties is of utmost importance. Therefore, in the

Memorandum on behalf of Respondents

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instant case, the intending couple and Ms.X had entered into a valid surrogacy agreement, and
therefore, the baby developing in Ms.X’s womb is a result of the surrogacy agreement only. It is
the surrogacy agreement that gives the unique nature to this procedure, and distinct from other
means of reproduction.

The Assisted Reproductive Technology (Regulation) Bill, 2008

The process of regulating conceptive technologies, popularly known as Assisted Reproductive

Technologies, which started in 1999 reached an important turning point in 2008. The Assisted
Reproductive Technology(Regulation) Bill was drafted.

Also, the 2008 ART Bill in section 2(t) and section 2(v) acknowledges the legal enforceability of
the agreement.

Section 2(t) of the ART(Regulation) Bill, 2008 defines surrogacy as

“surrogacy means an arrangement in which a woman agrees to a pregnancy, achieved through

assisted reproductive technology, in which neither of the gametes belong to her or her husband,
with the intention to carry it to term and hand over the child to the person or persons for whom
she is acting as a surrogate”

And, section 2(v) of the ART(Regulation) Bill, 2008 defines a surrogacy agreement as
“surrogacy agreement means a contract between the person(s) availing of assisted reproductive
technology and the surrogate mother.”

This ensures that surrogacy agreements are on par with any other contract under the Indian
Contract Act, 1872.

It is humbly submitted that the ART (Regulation) Bill, 2008 lays down in section 34(1) that

“Both the couple or individual seeking surrogacy through the use of assisted reproductive
technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be
legally enforceable.” Hence, it is only right that the surrogacy agreement entered into by the
respondent and the petitioner be legally enforced. Such a recommendation has also been made in
the 228th Law Commission Report.
Therefore, the counsel for the respondents humbly submits before the hon’ble court that all the
essentials to determine the surrogacy agreement as a valid contract have been brought before the

Memorandum on behalf of Respondents

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bench, and thereby, this surrogacy agreement is a valid contract and can be enforced under the
Indian Contract Act, 1872.

PARLIAMENTARY COMMITTEE REPORT ON THE SURROGACY BILL-

1. An additional provision of Section 34(3) gives the surrogate mother the right to receive
“compensation” from the couple or individual, for “agreeing to act as such surrogate”.

2. The committee has excellently dealt with the issue of “close relative” being a surrogate.
Though the object of this provision was to prevent exploitation of surrogate mothers, it becomes
complicated for only close relatives to act as surrogates. The committee explained that infertility
is a taboo in India and for couples to come forward and undergo ART procedures and surrogacy
procedures is frowned upon. In such a situation, to force couples to only be able to have close
relatives as surrogates is arbitrary and in violation of their basic reproductive rights. Also in the
context of the surrogate mother, it would be unfair for her to see the child repeatedly which
would have an emotional effect on the surrogate mother and the child. The committee has
recognised these factors and suggested that considering only close relatives is unworkable and
has no connection with the object to stop the exploitation of surrogates. Therefore, the
Committee recommends that this clause of "close relative" should be removed to widen the scope
of getting surrogate mothers from outside the close confines of the family of the intending couple.
In fact, both related and unrelated women should be permitted to become a surrogate.

3. The committee recognised that surrogacy is a reproductive labour. It says, “permitting the
women to provide reproductive labour for free to another person but preventing them from being
paid for their reproductive labour is grossly unfair and arbitrary. Pregnancy is not a one minute
job, but a labour of nine months with far reaching implications regarding her health, her time
and her family.” Therefore, altruistic surrogacy should be replaced with “compensatory
surrogacy model”.

[3] Plea for the specific performance of the contract-

Specific performance is a remedy developed by principle of equity. A party to a contract who is

damaged because the contract is breached by another party has the option to file a suit for
specific performance compelling to perform his part of contract. Before an equity court will
compel specific performance, however, the contract must be one which can be specifically
performed. Section 16 (c) of theSpecific Relief Act, 1963 envisages that plaintiff must plead and
prove that he had performed or has always been ready and willing to perform the essential terms

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of the contract which are to be performed by him, other than those terms the performance of
which has been prevented or waived by the petitioner.

Any person seeking benefit of specific performance of contract must manifest that his conduct
has been blemish-less (H.P.Pyarejan vs Dasappa, AIR 2006 SC 1144). In the immediate case,
we notice that all the conduct of the intending parents has been in accordance with the provisions
of the law, wherever the law was equitable and reasonable. Also, that the intention of the couple
is genuine can be seen from their conduct through out the matter. Hence, this court is moved to
grant the specific performance of the contract by Mrs. X.

It is the humble submission of the counsel for the petitioner that the surrogacy agreement
between the respondent and the petitioner satisfies all the essentials as stipulated under section 6
of the Surrogacy Act, 2016, and also all the essentials of a valid contract as provided in the
Indian Contract Act, 1872. Therefore, it is the submission of the petitioner that the surrogacy
agreement should be held valid and enforceable.

Memorandum on behalf of Respondents

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PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited,
the Respondent humbly pray before this Hon’ble Court to be graciously pleased to hold, adjudge
and declare that:

1. To dismiss this petition filed before this Hon’ble Court.

2. To Declare the impugned Act as Constitutionally Valid and does not violate the Basic
Structure Doctrine..

And/or pass any judgement that it deems fit in the interest of justice, equity, and good
conscience.

For This Act Of Kindness The Respondents Shall Be Duty Bound Forever Pray.

Place:

Date :

Sd/-

Counsel for Respondent

Memorandum on behalf of Respondents