SAVEETHA UNIVERSITY

SAVEETHA SCHOOL OF LAW

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3 Jus Amicus National Moot Court

Competition, 2015

MOOT PROBLEM

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Date: 10 April, 2015 12 April, 2015

Venue: Saveetha School of Law, Saveetha University

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3 Jus Amicus National Moot Court Competition, 2015

BEFORE THE HONBLE SUPREME

COURT OF BHARAT,
NEW DELHI

IN THE MATTER OF:

DR. YANG& ORS

Vs.
UNION OF BHARAT& ORS.

 Saveetha School of Law, Saveetha University, Chennai

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FACTS:

Dr. Yang who was a citizen of Jaipan and Dr. Geeta are citizens of the Union
of Bharat and are currently settled in Chennai, the capital city of Tamil
Nadu.. They have been working in the GOVERNMENT HOSPITAL at R. A.
Puram, Chennai and have been living together for the past 3 years. In the
year 2012, they got married according to the provisions of the Special
Marriage Act, 1954 and have been living happily.

A few months after the marriage, Dr. Yang wished to have a child. His wish
was to have a girl child. He expressed this wish to his wife Dr. Geeta.
However, much to his surprise, Dr. Geeta was not very keen on having a
child, let alone a girl child. This led to several heated arguments which
ultimately resulted in them living separately. Despite living separately, Dr.
Yangon several occasions tried sorting out their differences. Their marriage
reached a stage where Dr. Geeta wanted a divorce from Dr. Yang. She filed a
divorce petition before the II

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Additional Family Court, Chennai. When the

matter became serious it was timely intervened by their friends. It was

through their mutual friends that Dr. Yang learnt, that Dr. Geeta could never
conceive in a natural way. This resulted in Dr. Yang and Dr. Geeta settling for
a compromise amongst them. The divorce petition was abandoned by them,
however it is still pending before the Honble Court.

Dr. Yang and Dr. Geeta agreed to have a surrogate child through the IVF (In
Vitro Fertilization) treatment. They approached their domestic help Mrs.
Maria Baumer who is a German National turned Bharat citizen and offered
to pay her a huge sum as consideration for the same as she was in desperate
need of money. After giving it a lot of thought and discussing about the same

with her family, Mrs. Maria Baumer, agreed to be the surrogate mother for
their child for a sum of Rupees 15,00,000/-.
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Dr. Yang then visited Dr. Subramanian, one of the leading doctors who is a
specialist in the said field. Dr. Subramanian was the head of the Assisted
Reproductive Technique Clinic department at a well-known hospital known
as MEDICAL BHARAT located in Anna Nagar. Dr. Subramanian, firmly
advised Dr. Yang and Dr. Geeta that they should not take the help of their
domestic help, as its an act against the religious sentiments of our society.
He informed them that, according to the prescribed procedures given by the
Medical Council of Bharat, they can take the help of a willing surrogate
mother. Dr. Geeta was firm that they would take only Mrs. Maria Baumer s
help in being the surrogate mother of their child, rather than taking the help
of another unknown willing surrogate mother. Dr. Yang wished that the child
should be a girl.

As per the government rules before starting the treatment, the couple Dr.
Yang, Dr. Geeta, the surrogate mother Mrs. Maria Baumer and the hospital
MEDICAL BHARAT represented by Dr. Subramanian have to sign an
agreement which specifically stated the procedures involved during the
course of treatment. In the agreement, there were certain specific terms
which read as follows:

The surrogate mother would be kept under the care and supervision
of the hospital.

During the course of treatment, the couple would not be able to

meet the surrogate mother of their child.

After giving birth to the child, the surrogate mother should not
work for the couple or even reside close to the locality were the

couple lived.

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Incase any medical complications arise and if the question of the

abortion comes, it will be the sole discretion of the Couple to decide
as to what has to be done. The Couple would be responsible for the
outcome.

The agreement was dully signed by Dr. Yang, Dr.Geeta, the surrogate mother
Mrs. Maria Baumer and the hospital.
Dr. Subramanian started the treatment of In- Vitro Fertilization with
Embryo Transfer on the surrogate mother Mrs. Maria Baumer. After the
treatment, a few weeks later Dr. Geeta became inquisitive to know about the
health of her child. On approaching Dr. Subramanian to enquire about the
health of the surrogate mother Mrs. Maria Baumer and the child, Dr.
Subramanian refused to disclose any details of the child as well as the
surrogate mother Mrs. Maria Baumer as he was bound by the agreement.

However, Dr. Geeta was eager on knowing the progress of the surrogate
mother Mrs. Maria Baumer and the child, because to have a child is the
strongest human desire, second only to survival itself. If none of us passed
on our DNA and refused to become parents, life would end with us. Its true
having a child is the most innate thing in the world and so she was eager to
know the progress of the same. She managed to gather information about
the health of the surrogate mother Mrs. Maria Baumer through Dr.
Subramanians wife who was Dr. Yangs school friend and also a doctor in the
hospital MEDICAL BHARAT.

During the 17

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week of pregnancy, Mrs. Maria Baumer consulted Dr. Ashok

her supervisor and complained of uneasiness and pain in the legs. Upon
examination of Mrs. Maria Baumer, it was found that Mrs. Maria Baumer

had developed a certain medical complication medically termed as Deep

Vein Thrombosis which could be dangerous for her and the child. Medical
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termination of pregnancy was to be carried immediately for which Mrs. Maria
Baumer gave her consent. Dr. Ashok stated that there is a 50-50chanceof
curing the said medical complications for the mother(Medical Termination
of Pregnancy- MTP)

Dr. Subramanian met Dr. Yang and Dr. Geeta. He explained Mrs. Maria
Baumers medical condition of Deep Vein Thrombosis (DVT) and how it could
be harmful both for Mrs. Maria Baumer and their child. It could cost the life
of either of the two or both. He informed Dr. Yang and Dr. Geeta that the
mothers life is at risk and MTP is a must. This was not agreeable by Dr.
Yang and Dr. Geeta. The hospital carried out MTP with the consent of the
surrogate mother Mrs. Maria Baumer.

Not able to bear the shock of losing his child, Dr. Yang filed a suit against the
hospital MEDICAL BHARAT and Dr. Subramanian before the High Court
of Madrasa. Dr. Yang contented before the Honble court:
1) THAT THERE WAS A BREACH OF CONTRACT BY THE HOSPITAL
MEDICAL BHARAT AND DR. SUBRAMANIAN, AND

2) DIRECTING THE HOSPITAL AUTHORITIES TO PAY A MONETARY

COMPENSATION FOR THE HARDSHIP AND AGONY CAUSED TO HIS
FAMILY.

The Honble High Court of Madrasa allowed the contentions of the petitioner
and directed the hospital authorities to pay a monetary compensation of
Rupees 20,00,000and to give it with an interest @ 9% per annum from the
date of the decree till date of payment.

Being aggrieved by the order, the hospital represented by Dr. Subramanian

filed an appeal before the Bench of the Honble High Court of Madrasa. The
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Honble Bench of the Honble High Court of Madrasa allowed the appeal in favor of
the appellant hospital. The Honble Bench held that:

The hospital did not violate any provision of the contract as the life
of the mother was more important than the life of the fetus.
Aggrieved by this order, Dr. Yang filed a Special Leave Petition before the
Supreme Court of Bharat.
Ms. Sushmitha, a final year medical student studying in P & D MEDICAL
COLLEGE, filed a Public Interest Litigation (P.I.L) before the Supreme Court
of Bharat. She contended that, as the Parliament has not enacted any special
laws or legislation with respect to SURROGACY and as most of the
surrogate mothers are poor women who are in need of money are being
exploited. Due to lack of proper legislation, both the surrogate mother and
intended parents are exploited by middle men and agencies and they make
huge sums of profits of this. The worst part is that in case of an unfavorable
outcome of pregnancy, the surrogate mother is unlikely to be paid and that
there is no provision of insurance or post pregnancy medical and psychiatric
support for her. There is no transparency in the whole system. Ms.
Sushmitha prayed before the Honble Court to:

1) Direct the Union of Bharat to frame guidelines to be followed by the

medical authorities with respect to surrogacy, and

2) Direct the government to list out Hospitals which would be authorized

to carry out the treatment of Surrogacy

An NGO named GHOST-ASSOCIATES represented by their Secretaries

Gautam Suseel and Prerana Saraf from Bangalore filed another Public

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Interest Litigation before the Supreme Court of Bharat against the Union of
Bharat stating that:

In a surrogate situation, the gestational mother is the woman who carries

the baby to term. This can be a very taxing process both physically and
emotionally and unique in that after the surrogate mother physically
carries the baby throughout the pregnancy, she needs to physically and
emotionally detach herself from the child once it is born.

Because the gestational mother will not likely be the child's primary
caretaker, there could be legal questions that arise in terms of what if any
involvement she will have with the child once born.

There are also ethical considerations that are brought to mind in terms of
informing the child of his or her surrogate mother, as doing so may have an
effect on the child's self-identity.

When developed countries throughout the world have banned commercial

surrogacy, the country of Bharat must also hold the said act illegal.

Therefore it is prayed before the Honble Court that:

1) The Union of Bharat declare the practice of SURROGACY illegal as

it violates the cultural sentiments of the Bharat Society and it
violates the fundamental rights of the surrogate mother who gives
birth to the child.

 Saveetha School of Law, Saveetha University, Chennai

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THE HONBLE SUPREME COURT OF BHARAT, THROUGH THE POWERS
VESTED IN IT, ORDERED A JOINT HEARING OF ALL THE
CONNECTED MATTERS, AND THAT HAS COME FOR A HEARING

PLEASE NOTE:
1. The Case is posted for final hearing before the Honble Supreme Court.
2. Participants are free to frame not more than 5 issues based on the issues

framed in the two PILs.

3. All cultural, legal &social aspects have to be borne in mind while framing

the issues.
4. The laws of Bharat are same of laws of India.

 Saveetha School of Law, Saveetha University, Chennai

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