Allahabad High Court seeks Central government stand on custody of surrogate child born before Surrogacy Act 2021

The Allahabad High Court recently sought a reply from the Central government on the issue of custody of a child born out of surrogacy before the implementation of the Surrogacy (Regulations) Act, 2021 [Snigdha Majumdar v. Union of India]..A Bench of Justices Attau Rahman Masoodi and Vikram D Chauhan sought the government's response in a plea filed by a surrogate couple who claimed that a particular provision in the 2021 Act rendered them remediless with regard to obtaining a visa for their child..The High Court's interference was sought by a couple who became parents through surrogacy before the 2021 Act came into force. When they sought to obtain an Australian visa for the child, they were informed by the High Commission that they had to produce a court order in relation to custody of the child to the effect that they have full consent over where the child can reside. A time period of 180 days was granted to the couple for obtaining this court order, failing which the visa application would be rejected.However, as per Section 4(iii)(a)(II) of the 2021 Act, a Magistrate First Class has jurisdiction to decide the question of custody of the child only before any progress was made towards the surrogacy. In effect, the magistrate was powerless to produce such an order once the surrogacy was approved and the child was born. The plea stated,"That it seems that the Australian High Commission is also demanding a similar order to the one contemplated under the 2021 Act, but which cannot be issued by the Magistrate in the Petitioners’ case because the stage of passing of such order has elapsed in this case, and the Magistrate has no power to pass an order at this stage."This situation, the couple argued, rendered them remediless..The petitioners thus sought the following reliefs:(a) Issue order or direction commanding Central government to immediately address the issue of applicability of the Surrogacy (Regulations) Act 2021 to children born of surrogacy before implementation of the said Act;(b) Issue order or direction commanding Central government to devise an alternate mechanism to certify/clarify the rights and custody of children born out of surrogacy before the implementation of the Act;(c) Issue order or direction to the effect that the couple have complete rights over their son and have full consent over where the child can reside..After going through the provisions of the Act, the Bench said in its order,"Before consideration of the aforesaid provisions enabling the minor child to have an order concerning his parentage and custody, we deem it proper that notice through registered post as well as Dasti may be issued to opposite party nos.2 and 3. Opposite party no.1 is already represented by Sri Manoj Kumar Singh, learned counsel for Union of India."The matter will now be heard on July 5..The petitioner was represented by Advocates Kartikeya Saran and Ujjawal Satsangi. .[Read order]