2) What Constitute the Best Interest of the Child?

PROBLEM

Mr Anoop an IAS officer and Mrs Smitha a lecturer got married under Hindu Marriage Act on 10th January 2009 at Ernakulam, Kerala. Even after 5 years of marriage the couple were not blessed with a child and for the same reason they consulted a fertility clinic. After examination it was found that the ovum of Mrs Smitha was not healthy and that she cannot conceive. The couple were advised to opt for Artificial Reproductive Technique using a donor ovum from ovum bank. Both of them conceded to the same and an agreement was signed by the couple regarding the treatment and custody and legitimacy of the child which is in accordance with the National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India 2005. A girl child Indira was born to the couple on 25 th February 2015 through In Vitro Fertilization.

The couple treated the child as their own and Indira was showered with love and affection by both her parents. Meanwhile Smitha started to develop an extra marital affair with her colleague Mr Sunil. This constrained their marital relation. The couple got divorced on August 2016. However the husband retained the custody of the one and a half year old daughter Indira claiming that he is only biologically related parent of the child. Mr Sunil on 1st July 2017 remarried one Mrs Anitha. Mrs Smitha is currently living with her parents.

Mrs Smitha filed a petition against Mr Anoop in the District Family Court Ernakulam for the breach of contractual agreement entered with the ART Clinic and for the custody of the minor girl child.

Mr Anoop challenged the validity of the contractual agreement entered by the couple with the ART clinic on the ground that the same was against public policy and there existed no informed consent. He claimed that the ART clinic did not give complete information about the agreement signed and thus there was no informed consent. He also suggested that the factor to be considered is the best interest of the child.

ISSUES:

1) Whether the contract entered with the ART Clinic is a valid one under The Indian Contacts Act?

2) What constitute the best interest of the child? 3) Who can claim the legal custodianship in the particular case?