MOOT PROBLEM FOR INTERNAL SELECTION OF BAR COUNCIL OF

INDIA MOOT COURT COMPETITION.

Utopia is a country having a constitutional and legal system similar to that of India. Insania
is a state in Utopia. Kishore and Meera are citizens of Utopia and were married in
accordance with the rituals of Hindu Religion. Prior to their marriage, Meera’s uterus was
removed. This fact was not disclosed by her to Kishore due to the pressure from her parents.

In spite of the consummation of marriage, Meera could not conceive a child. She resisted
Kishore’s insistence for consulting a gynecologist. As their relation got in a vortex, Kishore
filed a petition before the Family Court on the ground of cruelty. Meera appeared before the
court and denied all the allegations therein. During the pendency of the petition, the matter
came to a compromise due to the timely intervention of some friends and well-wishers of
Kishore and Meera. They arrived at a compromise, as a result of which a compromise
petition was filed before the court.

A compromise decree was pronounced by the court. According to the terms of the
compromise, it was agreed that, a surrogate would be hired for carrying a child of Kishore
and Meera.

Kishore and Meera approached Insania Institute of Medical Sciences (herein after called
I.I.M.S.) which is a deemed medical university for a surrogate mother. I.I.M.S. had a specific
policy that required the non-disclosure of the name of the surrogate mother. Kishore, Meera
and Mr. Vinod Malhotra who was the Registrar of I.I.M.S. signed a contract in this regard.

Ms. Sheela was a healthy lady of 28 years of age. She was a brilliant student with a
Graduation in Home science. She had aged parents and three unmarried younger sisters.
One of her sisters was suffering from leukemia. She was in dire need of money for meeting
the treatment expenses of her youngest sister. After negotiations with Sheela the authorities
of I.I.M.S. decided to hire Sheela’s uterus to implant the zygote from the union of sperm of
Kishore and ovum of Meera.

Thereupon Artificial Insemination (A.I.) was conducted by Dr. Mohan, who was the Head of
the Department of Anthology and Gynecology of I.I.M.S. and the zygote was implanted in the
uterus of Sheela. Though she was under complete protection and supervision of the hospital,
it was specifically provided in the agreement that she could exercise all personal freedoms
without creating any sort of danger to the child in the womb.

After A.I., Kishore became curious about the health of his unborn child. He asked for the
identity of the surrogate mother to the hospital authorities, who turned down his request. He
asked Meera to enquire about the whereabouts of the surrogate mother. As a result, the
latter managed to gather the whereabouts of Sheela through Mrs. Mohan, who was her close
friend. However Meera did not reveal the identity of Sheela to Kishore due to the fear that
some sort of intimate relationship would be developed between Kishore and Sheela.

In the meantime the Parliament of Utopia amended the Transplantation of Human Organs
Act, 1994(herein after mentioned as T.H.O. A.,1994)whereby an exception was provided to
Section 2 which reads as follows:-

“Explanation:- For the purpose of Section 2(h) the term human organ includes
sperm, ovum and zygote.”

(Contd…2)
 -: 2 :-

The amendment also inserted a new provision viz. Section 7A which reads as follows:

“Section 7A:- The donor of the human organ has the right to know the whereabouts
of the recipient ,and has the right to ensure that the health of the recipient is
protected in all respects. Any person who violates this right of the donor shall be
punished with imprisonment of either description for a period of two years or fine or
both.”

Kishore filed a criminal complaint against the Registrar of I.I.M.S. alleging that the I.I.M.S.
authorities have committed the offence under Section 7A of the T.H.O. A., 1994. He alleged
that the donor of the human organ has the right to know the whereabouts of the organ
donated and that “sperm” comes within the preview of “human organ” contemplated under
the T.H.O. A.,1994. The magistrate with out taking cognizance referred the matter for the
investigation to police. On receiving the complaint the police registered a Crime, and the
matter was pending investigation.

During the fourth month of her pregnancy Sheela was not feeling well and she consulted
Dr.Manoj who is her family friend and physician. After detailed examination Dr.Manoj
detected fast diminishing of platelet count and he specifically advised her to terminate the
pregnancy at the earliest. He also warned her that the continuation of her pregnancy would
either cost her life or serious Health problem in future . Sheela informed the hospital
authorities her decision to abort. Kishore was informed of this, by the Hospital.

Kishore filed a writ petition against State of Insania and I.I.M.S. before the High Court of
Insania seeking a direction against the I.I.M.S. authorities, not to terminate the pregnancy.
He also sought compensation from the I.I.M.S. authorities, if abortion is conducted contrary
to the terms of agreement which was dismissed inlimine.

The Registrar of I.I.M.S. of filed a petition before the High Court of Insania for quashing the
whole criminal proceedings which was allowed.

Aggrieved by the orders of the High Court of Insania, Kishore filed special leave appeals to
the Supreme Court of Utopia.

At the annual general meeting of the Utopian Medical Association (U.M.A.), Dr.Mohan and
Dr.Manoj had a cocktail party with Mr. Vishal who is a child psychologist, human rights
activist and a well known social worker, whereby they happened to discuss the case of
Kishore, Meera, and Sheela.

On the very next day, Mr.Vishal through his counsel filed a writ petition before the Supreme
Court of Utopia seeking a direction against the Union of Insania, State of Insania and the
I.I.M.S. authorities to ensure the birth of child without any hindrance. In the petition, he
alleges that the right to life and personal liberty contemplated under Article 21 of the
Constitution of Utopia emerges from the moment of starting of the heart beat of the foetus
and that right to life includes the right to be born alive.

The appeals filed by Kishore and the writ petition filed by Mr. Vishal come up for joint
hearing.