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High court steps into custody battle between surrogate and father

We are not talking about the U.S. Supreme Court here. We are talking about the high court in another country, Pakistan, that has agreed to consider a custody matter for a U.S.-based couple. The case is interesting not only because of its subject matter -- surrogacy and custody -- but also because of the tension between civil law and religious law. As we read the story, we wondered if the case would turn out differently here in the U.S.

The court surprised many when it agreed to take up the merits of a lawsuit that a lower court reportedly said was frivolous. The parties are a foreign national who lives in the states with his wife, the woman he claims agreed to be a surrogate for the couple, and their seven-year-old daughter.

The petitioner says he and his wife were unable to have their own children, so in 2004 they advertised for a surrogate in their home country, Pakistan. The child would be conceived through artificial insemination, and the surrogate would carry the baby to term in exchange for money. According to a contract signed by all parties, the petitioner and his wife would then be the child's parents; the surrogate would have no further role in the child's life. The petitioner says he was clear that the surrogacy contract was not a marriage contract.

After the respondent became pregnant, the petitioner says she started to demand more and more money for a number of reasons. That was the beginning. Things came to a head in 2010, when a district court in Rawalpindi granted custody to the respondent.

The judge read the contract as a marriage contract and stated that the custody dispute came about after the petitioner and respondent divorced. As for custody, the judge said, it would be wrong to rob the baby of her mother's love and care. These had all been arguments of the respondent.

The petitioner has an uphill battle, according to an expert on Islamic jurisprudence. In the Quran, the expert says, the mother has three roles: bearing the child in her womb, delivering the child with pain, and breastfeeding the child for two years. That, he explains, means that the surrogate has preference over the father. Parental rights and financial responsibility for the child, though, should be shared by the biological parents, he adds.

We will try to follow the case, especially if the matter comes to the U.S. courts.

Source: International Herald Tribune, "Wife or surrogate mother?: Apex court takes up unusual child custody battle," Azam Khan, Oct. 21, 2012

Our firm handles custody cases as complicated as the one discussed in this post. Please visit our Libertyville, Illinois, child custody page to learn more about our practice.

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