Issue 2

ISSUE 2: WHETHER HE SURROGACY CONTRACT WAS VALID BETWEEN MR. & MS.
CHOPRA AND MS
KHAN UNDER THE SURROGACY (REGULATION) ACT,2021?
It is submitted before the hon’ble court that the contact was valid between Mr. & Ms. Sehgal
and Ms. Khan under the ICA 1872, as per section 10 of ICA
All agreements are contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are not hereby expressly
declared to be void.
Nothing herein contained shall affect any law in force in India, and not hereby expressly
repealed, by which any contract is required to be made in writing or in the presence of
witnesses, or any law relating to the registration of documents.
The essentials needed for a valid contract:
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.
The surrogacy agreement will only be deemed legitimate and enforceable in a court of law if
all of these requirements are met. Furthermore, it is argued that, in this particular instance, the
agreement satisfies all requirements, including that the parties are competent, that free
consent exists, that there is a legitimate consideration and object, and that it is not expressly
declared void.
2.1 Free consent

Consent is said to be free when it is not caused by—
(1)coercion, as defined in section 15, or
(2)undue influence, as defined in section 16, or1
(3)fraud, as defined in section 17, or
(4)misrepresentation, as defined in section 18, or
(5)mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so
caused when it would not have been given but for the existence of such coercion, undue
influence, fraud, misrepresentation or mistake.
It is submitted to hon’ble court there is a free consent between both the parties Mr. & Mrs. Sehgal &
Ms Khan Consent is deemed free. According to the courts, mental distress brought on by a
financial need is insufficient to disprove consent.1
2.2 Competency to contract
1
Raghunath Prasad VS Sarju Prasad AIR 1924 PC 60
Its is humbly before the hon’ble court that the parties was competent to contract according to
sec 11 of ICA 1872
Every person is competent to contract who is of the 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.
Mr. and Mrs. Seghal and Ms. Khan appear to be competent to contract as per Section 11 of
the Indian Contract Act, 1872. Mr. and Mrs. Seghal, being adults and of sound mind, were
legally capable of entering into contracts. Similarly, although Ms. Khan's marital status as a
widow and her age of about 32 years are mentioned, there is no indication of any mental
incapacity or legal disqualification that would render her incompetent to contract. Therefore,
both parties involved in the surrogacy contract, Mr. and Mrs. Seghal and Ms. Khan, were
competent to enter into the agreement.
As per surrogacy regulation act 2021 under Section 4(b) of the Surrogacy (Regulation) Act,
2021, Ms. Khan fulfills the eligibility criteria to act as a surrogate mother. She possesses an
eligibility certificate issued by the appropriate authority, indicating that she meets the
conditions specified under the Act. Ms. Khan, an ever-married woman with a child of her
own and age of 32 years, satisfies the criteria set forth in the Act. Therefore, she is deemed
eligible to undergo surrogacy procedures as per the provisions of the Act.
Furthermore, under Section 4(c) of the Surrogacy (Regulation) Act, 2021, Mr. and Mrs.
Seghal, as intending parents, are also eligible to enter into the surrogacy contract. They
possess an eligibility certificate issued separately by the appropriate authority, indicating that
they meet the conditions specified under the Act. The intending couple, being married and
within the prescribed age limits of 23 to 50 years for the female and 26 to 55 years for the
male, and having not had any surviving child biologically or through adoption or surrogacy
earlier, fulfill the eligibility criteria outlined in the Act.
Therefore, based on the eligibility certificates issued to both Ms. Khan and Mr. and Mrs.
Seghal by the appropriate authority, it can be concluded that they were eligible to enter into
the surrogacy contract in accordance with the provisions of the Surrogacy
(Regulation) Act, 2021.
We respectfully submit to the honorable court that Ms. Khan has not adopted the appellant.
Since Ms. Khan follows Islam, she is a Muslim, and adoption of children is expressly
forbidden by Islamic law. It is further alleged that Ms. Khan developed emotional ties to the
surrogate child inside her during the latter part of the seventh month of her pregnancy.
Because of these emotions, she made the decision to revoke her consent, disappear, and never
turn up in the city of Cati. She made the decision to carry out her plan during the final week
of the eighth month of pregnancy, wrote a letter, and mailed it to Dr. Khan and the Sehgal
family. Additionally, it is argued that the pertinent letter's abstract said the following: "I
sincerely apologize to Mr. and Mrs. Sehgal for treating me like their own for all these
months. I would never be able to fully let go of this guilt and could never fathom the amount
of suffering I cause you. Nevertheless, I am powerless now, and my love for the child
growing inside of me has overwhelmed any other emotion I could experience. I apologize to
Dr. Khan, who has provided me with excellent care, and the DTC hospital. I know I'll never
be worthy of your forgiveness, but please accept that I'm at your mercy now. Moreover, it is
proposed that the pertinent summary from the correspondence mentioned the following: "I
sincerely apologize to Mr. and Mrs. Sehgal for treating me like their own for the past few
months. I'm not sure how much suffering I cause you, and I'll never be able to fully let go of
this guilt. But at this point, I'm powerless and my love for the child inside of me has
overwhelmed any other emotion I could experience. I'm sorry to Dr. Khan, who has been
taking excellent care of me, and the DTC hospital. I realize that I will never be worthy of
your forgiveness, but please accept that I am at your mercy.
B r e a c h o f C o n t r a c t
Violation of the Agreement It is respectfully urged that Ms. Khan violated the terms of the
contract, which expressly state that she must turn over the kid and give up all rights to the
intended parents. The parties did not revoke or cancel the agreement. All that happened was
that Ms. Khan requested in writing that the Chopra family give up custody of their biological
kid.
A d o p t i o n N o t V a l i d i n M u s l i m L a w .
Under Islamic law, adoption is invalid. It is respectfully submitted that adoption is the
process by which a person who is born into one family group gains new kinship links that are
thought to be comparable to congenital relationships. According to Section 2(2)(aa) of the J.J.
Act of 2015, adoption is defined as "the procedure by which the adopted kid is lawfully
adopted as a child of his adoptive parents, with all the rights, benefits, and obligations
associated with a biological child and is permanently separated from his biological parents."

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ISSUE 2: WHETHER HE SURROGACY CONTRACT WAS VALID BETWEEN MR. & MS.

2.1 Free consent

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