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‘Surrogate’ mother wins long drawn child custody battle

November 28, 2012

RAWALPINDI, Nov 27: A local surrogate mother who allegedly bore a child for a childless couple for a fee won the legal custody of the child too on Tuesday after a court battle with the Pakistani American who claims to be the biological father of the girl child.

Justice Ijaz Ahmed of the Rawalpindi bench of the Lahore High Court (LHC) ruled that petitioner Farooq Siddiqui failed to prove his case of surrogacy and that Farzana Naheed was the legitimate custodian of Fatima, the girl she gave birth to on February 13, 2005.

It is perhaps the first case of its kind in Pakistan where no law exists on surrogacy.

Farzana claimed to be married to Farooq but he asserted that he had hired her after she answered his ad for a surrogate mother.

She agreed not to claim the child she would bear for him and was paid Rs1 million for the service, he claimed.

After her medical tests and artificial impregnation, he said he prepared a nikahnama of a fictitious marriage with Farzana but did not sign it.

Farooq alleged that as the pregnancy progressed, Farzana and her relatives started blackmailing him for more money on one pretext or another.

After giving birth to Fatima Siddiqui, he said Farzana left the baby with him and disappeared – only to file a habeas corpus petition under Section 491 of Criminal Procedure Code which empowers family courts to recover a minor child from the custody of father. And on March 1, 2005, a sessions court handed the two-week-old Fatima to Farzana.

Four years later, Farooq challenged the sessions court order in the Lahore High Court (LHC) which finally dismissed his case on Tuesday.

Justice Ijaz Ahmed ruled that while the motherhood of Farzana is undeniable, petitioner Farooq primarily rested his case on his financial affluence.

The judge said the poverty of mother did not disentitle her for the custody of child. She is already, as the petitioner contends, financially deprived woman and another deprivation of the custody of child cannot be allowed to multiply her woes.

The court observed that Farooq admitted that he was not in a marriage contract with Farzana, therefore, he could not claim the custody of child in question.

Neither the petitioner took the stance that he himself transplanted the fertiliser egg to the uterus but it was a third person who did it and Farooq did not produce that third person in the witness box.

The judge said the case of surrogacy was not proved as the law of the land does not recognise surrogacy. Even if it had, and the transplantation of a fertilised egg was proved, there is no evidence that the sperm that fertilised the egg, originated from the petitioner.

So, the custody of the child will go to the mother who housed the fetus for nine months.

Legal experts feel that in the absence of surrogacy-related laws, there is no protection for the family that wanted to have child through artificial insemination.

Barrister Saeedur Rehman told Dawn that surrogacy is the legitimate way of having child in Europe and United Kingdom.

“Surrogacy is like a paid job in which the surrogate mother soon after delivery of child hands over his custody to the couple who had paid her for that particular assignment,” he said.

In the case of any legal complications, where the birth woman claims that the child was not born with the sperm of his father, the dispute can be resolved through DNA test, he added.

However, the petition of Farooq was different not only because surrogacy is not allowed in Pakistan, but also because the fake marriage he entered into with Farzana denied his claim for the custody of the child under the Pakistan family laws, Barrister Saeed said.