Moot memo for Surrogacy PDF

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3 RDADVOCATE P. SHIVAJI SHETTY MEMORIAL MOOT COURTCOMPETITION, 2018TC: PAYASWINIIN THE HON’BLE HIGH COURTOF KARNATAKACIVIL WRIT PETITIONW. NO. ________ / 2018(FILED UNDER ART. 226 OF THE CONSTITUTION OF INDIA)IN THE MATTER OFPHILOMENA ...................................................versusSTATE OF...

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WRITTEN SUBMISSIONS FOR THE PETITIONER

3RD ADVOCATE P. SHIVAJI SHETTY MEMORIAL MOOT COURT COMPETITION, 2018 TC: PAYASWINI

IN THE HON’BLE HIGH COURT OF KARNATAKA

CIVIL WRIT PETITION W.P. NO. ________ / 2018

(FILED UNDER ART. 226 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF

PHILOMENA……………………………………….……PETITIONER versus

STATE OF KARNATAKA & ORS……………..……..RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER, COUNSEL FOR THE PETITIONER.

WRITTEN SUBMISSIONS FOR THE PETITIONER TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………….……………………..1 LIST OF ABBREVIATIONS…………………………….………………………….4 STATEMENT OF JURISDICTION………………………..………………………5 STATEMENT OF FACTS…………………………………………………………..6 ISSUES RAISED……………………………………………………………….…….8 SUMMARY OF ARGUMENTS…………………………………………...………..9 ARGUMENTS ADVANCED: ISSUE 1………………………………………………………….……………11 ISSUE 2………………………………………………………….……………14 ISSUE 2.1……………………………………………….………….14 ISSUE 2.2………………………………………….……….………15 ISSUE 3…………………………………………………………….…………17 ISSUE 3.1……………………………………………..……………17 ISSUE 3.2…………………………………………………………..18 ISSUE 3.3…………………………………………………….…….18

ISSUE 4………………………………………………………………………20 ISSUE 4.1………………………………………………………….20 ISSUE 4.2……………………………………………………..……23 PRAYER……………………………………………………………………………25

WRITTEN SUBMISSIONS FOR THE PETITIONER INDEX OF AUTHORITIES CASES CITED

S. NO.

CASE

PAGE NO.

1

Charan Lal Sahu vs. Union of India, AIR 1990 SC 1480

11

2

Central Inland Water Transport Corporation Limited v.

22

Brojo Nath Ganguly, AIR 1986 SC 1571 3

Delhi Transport Corporation vs. DTC Mazdoor Union,

12

AIR 1991 SC 101 4

EP Royappa vs. State of Tamil Nadu, AIR 1974 SC 555

12

5

Firm of Pratapchand Nopaji v. Firm of Kotrike Venkata

18

Setty & Sons, AIR 1975 SC 1223 6

Haji Abdul Shakoor and Co. Vs. Union of India, AIR 2002

15

SC 3423 7

In re Baby M, 537 A.2d 1227, 109 N.J. 396

21

8

Jan Balaz v. Anand Municipality, AIR 2010 Guj 21

16

9

Maneka Gandhi v. Union of India, AIR 1978 SC 597

14

10

Olga Tellis vs. Bombay Municipal Corporation, AIR 1986

11

SC 180 11

Province of Bombay vs. Khushaldas S. Advani, AIR 1960

18

SC 222 12

Rajinder Kaur vs. Union of India, AIR 2004 P&H 347

14

13

Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3

21

SCC 67 14

R. vs. Electricity Commrs, (1924) 1 KB 171, 204-05

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18

WRITTEN SUBMISSIONS FOR THE PETITIONER 15

State of Bombay vs. The United Motors (India) Ltd, AIR

13

1953 SC 252 16

State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12

11

17

Thomas-CSF v National Airport Authority of India, AIR

21

1993 Del 252 18

Kapoor v Jagmohan, AIR 1981 SC 136 (147).

12

BOOKS/JOURNALS/TREATIES REFERRED

S. NO.

BOOK/TREATY

1

DD Basu, “Commentary on the Constitution of India” (Vol. 1, 8th Edition)

2

DD Basu, “Commentary on the Constitution of India” (Vol. 10, 9th Edition)

3

Mulla, “The Indian Contract Act” (13th Edition)

4

MP Jain & SN Jain, “Principles of Administrative Law” (Vol. 2, 8th Edition)

5

Bryan A. Garner, “Black’s Law Dictionary” (8th Edition)

6

VG Ramachandran, “Law of Writs” (Vol. 1, 6th Edition)

7

D.D. Basu, “Shorter Constitution of India” (Vol. 2, 14th Edition 2010)

8

Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (29 May 1993)

9

H. M. Seervai , “Constitutional Law of India” (Vol. 2, 4th Edition)

10

H. M. Seervai, “Constitutional Law of India” (Vol. 3, 4th Edition)

WEBSITES AND LEXICONS: 1. SCC

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WRITTEN SUBMISSIONS FOR THE PETITIONER 2. Westlaw 3. Lexis Nexus 4. Manupatra

CONSTITUTIONS: Constitution of India, 1950

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WRITTEN SUBMISSIONS FOR THE PETITIONER LIST OF ABBREVIATIONS

ABBREVIATION

DEFINITION

v./vs.

Versus

Ltd.

Limited

AIR

All India Reporter

SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

Art.

Article

SAA

Specialized Adoption Agency

u/a

Under Article

u/s

Under Section

Ors.

Others

Anr.

Another

&

And

SCR

Supreme Court Reporter

USA

United States of America

Co.

Company

i.e

That is

Reg.

Regulation

Authority

Child Adoption Resource Authority

CWC

Child Welfare Committee

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WRITTEN SUBMISSIONS FOR THE PETITIONER STATEMENT OF JURISDICTION The Hon’ble High Court of Karnataka has the jurisdiction in this matter under Art. 226 of the Constitution of India.

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WRITTEN SUBMISSIONS FOR THE PETITIONER STATEMENT OF FACTS Richard and Martha are a couple in their mid-40s from California, USA. Martha, due to a congenital problem, cannot bear a child. Surrogacy is expensive in California and it is not easy to find a willing surrogate mother, so they wished to come to India. However, a visa was denied for the purpose of availing surrogacy benefits due to the visa ban order dated. 3/11/15. They then sought a tourist visa and got the same. Having reached India, they met James, who, on learning about their earlier failed attempt to avail a visa for surrogacy, encouraged them to explore the surrogacy option since they were already here and introduced the couple to a specialist at Mayo Clinic in Manipal. The specialist explained commercial surrogacy to them, and how then a court-adoption would enable the couple to take the child with them back to the USA. This attracted Richard and Martha, and they let James know that they were willing to pay a good sum of money to a potential surrogate mother. James approached Philomena and Thomas -- a married Roman Catholic Christian couple who are his neighbours in Manipura -- fairly young, poor but respectable labourers having two daughters. He approached them knowing they could use the financial help. The couple consented to lend a womb. Philomena was found medically fit, and an agreement was drawn up with Philomena and Thomas being one party, and Richard and Martha being the other. Traditional surrogacy was to be followed; and Philomena would give the child to Richard and Martha at any reasonable time soon after birth. Thereafter, the child would be taken care of by the said donees as their own child with no risk and responsibility to Philomena and Thomas. They were to be given Rs. 25 lakhs in total, half in advance and the other half payable after delivery, through an escrow bank account.

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WRITTEN SUBMISSIONS FOR THE PETITIONER Philomena was successfully impregnated. In due course of time, she delivered a healthy, good-looking male baby. However, Philomena and Thomas planned to keep the child. Richard and Martha were shocked and attempts made through James to gain custody failed. Based on the agreement, birth report and birth certificate obtained through the birth report, Richard claimed that he was father of the child and moved for the adoption of minor child under the Child Adoption Regulations. He sought a report from Specialised Adoption Agency, and also reported the abuse indulged in by Philomena by violating the agreement. The Specialized Adoption Agency was satisfied about the child being “abandoned” as per the provisions of Child Protection Act, 2015, and submitted its report to the local court for issual of appropriate adoption order under Sec. 59 of the Act read with Chapter IV of Adoption Regulation 2017 issued under the said Act. The adoption order was obtained, and after having obtained passport for the child, Richard and Martha were ready to take custody. Richard has issued legal notice demanding the custody of the baby, but Philomena and Thomas have resisted it. A writ petition has been filed in the Hon’ble High Court of Karnataka questioning the validity of the agreement; propriety of the report submitted by the Specialized Adoption Agency to the local Court; the Court having issued the adoption order; and the issue of the child’s passport by the Passport Authority. The case is posted for arguments before this Hon’ble Court.

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WRITTEN SUBMISSIONS FOR THE PETITIONER ISSUES RAISED

1. WHETHER THE WRIT PETITION IS MAINTAINABLE

2. WHETHER FUNDAMENTAL RIGHTS OF THE PETITIONER ARE VIOLATED 2.1 Whether Art. 14 is violated 2.2 Whether Art. 21 is violated

3. WHETHER THE ACTIONS OF THE AUTHORITIES ARE LEGALLY VALID 3.1 Whether the Authority’s adoption report is legally valid 3.2 Whether the Court’s adoption order is legally valid 3.3 Whether the Passport Authority’s issue of passport legally valid

4. WHETHER THE AGREEMENT IS LEGALLY VALID 4.1. Whether the agreement is enforceable 4.2. Whether the Petitioner is bound to give up custody of the child to the Respondent

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WRITTEN SUBMISSIONS FOR THE PETITIONER SUMMARY OF ARGUMENTS 1. WHETHER THE WRIT PETITION IS MAINTAINABLE The Petitioner humbly submits before this Hon’ble Court that the writ petition is maintainable u/a 226 of the Constitution. There exists an infringement of Fundamental Rights provided for under Art. 14 and Art. 21 by the Respondent, who is the sole protector of these very rights. Further, the Petitioner has a valid locus standi as the cause of action has already arisen and the repercussions of such action have directly violated the fundamental rights of the Petitioner.

2. WHETHER FUNDAMENTAL RIGHTS OF THE PETITIONER ARE VIOLATED The Petitioner humbly submits before this Hon’ble Court that there exists an infringement of fundamental rights provided for under Art. 14 and Art. 21. The Authority acts arbitrarily and unreasonably when it terms the child as “abandoned”, violating principles of natural justice and thereby also violating the Petitioner’s right to motherhood, an implicit right under Art. 21. Further, the local Court’s order is in violation of the principles of natural justice and contrary to procedure established by law.

3. WHETHER THE ACTIONS OF THE AUTHORITIES ARE LEGALLY VALID The Petitioner humbly submits before the Hon’ble Court that the Authority’s adoption report and the Court’s adoption order are invalid and can be challenged by the Petitioner. The Authority has violated procedure laid down in the Act and acted with prejudice, and the Court’s order as a result must be held invalid and quashed.

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WRITTEN SUBMISSIONS FOR THE PETITIONER Additionally, the Passport Authority’s action is also invalid due to the above, and as it is in contravention of the MHA visa ban order.

4. WHETHER THE AGREEMENT IS VALID The Petitioner humbly submits before this Hon’ble Court that the agreement is invalid as it consists an unlawful object, i.e., commissioning of surrogacy by foreigners, which is in contravention of the MHA visa ban order,; and, since it is against public policy due to the existence of unconscionability and unequal bargaining powers, potentially degrading a woman and being exploitative. Therefore, the Petitioner is not bound to give up custody of the child to the Respondent.

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WRITTEN SUBMISSIONS FOR THE PETITIONER ARGUMENTS ADVANCED

1. THE WRIT PETITION IS MAINTAINABLE:

It is humbly submitted before this Hon’ble Court of Karnataka that in the instant case, the civil writ petition filed by the Petitioner is maintainable u/a 226 of the Constitution of India, which gives citizens the right to approach the Hon’ble High Court on violation of a fundamental and/or legal right. The power of the Hon’ble High Court to issue a writ u/a 226 can be exercised for a two-fold purpose viz the enforcement of (a) Fundamental Rights, as well as of (b) Non-Fundamental or ordinary legal rights.1 In the instant case, there has been a violation of fundamental right of the Petitioner, i.e., art. 14 and art. 21, by the Respondent, who is the sole protector of these rights. In the case of Charan Lal Sahu vs. Union of India2, the SC held that: “..the parens patriae theory is the obligation of the State to protect and take into custody the rights and the privileges of its citizens for discharging its obligations.” However, in the instant case, this theory and responsibility of the State has not been followed. Further, the SC has held in Olga Tellis vs. Bombay Municipal Corporation3, that fundamental rights may be enforced when: a) action taken under a statute which is ultra vires, b) statute is intra vires but action taken is without jurisdiction, c) authority under an obligation to act judicially violates principles of natural justice, d) action taken is procedurally ultra vires.

1

State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12.

2

AIR 1990 SC 1480.

3

AIR 1986 SC 180.

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WRITTEN SUBMISSIONS FOR THE PETITIONER In the instant case, the acts of the Central Adoption Resource Authority, the local civil Court, and the Passport Authority have led to the grave violation of the Petitioner’s fundamental rights enshrined u/a 14 and 21. The Petitioner, further, has a valid locus standi. The cause of action has already arisen and the repercussions of such action have directly violated the fundamental rights of the Petitioner and aggrieved the same. In the case of EP Royappa vs. State of Tamil Nadu4, the SC held that: “... equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14.” In the instant case, the Authority has arbitrarily termed the child “abandoned child” and wrongfully submitted an adoption report consisting the same to the local civil Court. This arbitrary action, also in violation of the Petitioner’s right to motherhood5, was not curbed by the Court. Further, in Delhi Transport Corporation vs. DTC Mazdoor Union6, the SC held that: “the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi-judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act in question.” Further, non-observance of natural justice is itself prejudice to any man, and “a court shall not pass order by ignoring principle of natural justice”7 However, in the instant case, the principle of natural justice and the duty to give a reasonable opportunity to be heard is denied by the Authority when it is satisfied 4

AIR 1974 SC 555.

5

R. Rajagopal vs. State of Tamil Nadu, AIR 1995 SC 264.

6

AIR 1991 SC 101.

7

Kapoor vs. Jagmohan, AIR 1981 SC 136 (147).

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WRITTEN SUBMISSIONS FOR THE PETITIONER about the child being “abandoned” on the basis of the agreement, whose very enforceability is in question, and when it moves on with the adoption report regardless. The local civil Court further issues the adoption order having ignored natural justice. In the case of State of Bombay vs. The United Motors (India) Ltd.8, the SC held that: “the principle that a court would not issue a prerogative writ when an adequate alternative remedy was available could not apply where […] a party came to the court with an allegation that his fundamental rights had been infringed and sought relieft under article 226.” Therefore, in view of the continuous violation of the Petitioner’s fundamental rights enshrined in the Constitution of India, alternative remedy is no bar for entertaining the writ petition and granting relief.

8

AIR 1953 SC 252

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WRITTEN SUBMISSIONS FOR THE PETITIONER 2. FUNDAMENTAL RIGHTS OF THE PETITIONER ARE VIOLATED

It is humbly submitted before the Hon’ble Court that the fundamental rights of the Petitioner enshrined u/a 14 and 21 of the Constitution are violated, in view of the arbitrariness and violation of the principles of natural justice; and violation of right to motherhood, a right implicit u/a 21. This will be substantiated in a two-fold manner:

2.1 Violation of Art. 14: In Rajinder Kaur vs. Union of India9, it was held that: ”Even in cases of administrative decision, if irrelevant matter is taken into consideration or where the decision is based on no sufficient material, article 14 could be invoked, being an arbitrary decision” In the instant case, the SAA is satisfied about the child being an “abandoned child”, when in fact, the child is not even under the custody of the SAA or CWC as the procedure requires under the Act and the Adoption Regulations10. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of art. 14.11 The child was in the custody of the Petitioner, and efforts12 to trace biological parents were not made, which is of striking unfairness to the Petitioner. Therefore, the decision is based on “no sufficient material”, is wholly arbitrary in nature and violative of the the Petitioner’s fundamental right enshrined u/a 14.

9

AIR 2004 P&H 347

10

Reg. 6 of Adoption Regulations, 2017

11

Maneka Gandhi v. Union of India, AIR 1978 SC 597

12

Sec. 38 of the Act.

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WRITTEN SUBMISSIONS FOR THE PETITIONER As a result, the adoption order and the issue of passport - which is also in contravention of the MHA order, defeating its very purpose - are arbitrary in nature and also violate the principles of natural justice. In the case of Haji Abdul Shakoor and Co. Vs. Union of India, it was held that “the doctrine of natural justice means fairness in action”. It includes the right to be heard before adverse action is taken. If adverse action is taken by the State against a citizen breaching principles of natural justice, the Court would step in and correct the wrong done.13 In the instant case, the audi alteram partem rule that enforces the equality clause in Art. 14 is wholly disregarded by the Authority, when it goes on to term the child “abandoned” on baseless grounds and without giving the Petitioner the opportunity to be heard, despite being the child’s biological and legal mother. Therefore, the Authority displays a lack of competence by way of arbitrary action and violation of the principles of natural justice, disregarding the procedure laid down in the Act and the Regulations.

2.2 Violation of Art. 21: In the case of R. Rajagopal vs. State of Tamil Nadu14, the SC held that right to motherhood is an implicit right u/a 21. In the instant case, ...