A US-based Pakistani, Farooq Siddiqui, approached the Supreme Court this week with an unusual request – that it retrieve his seven-year-old daughter, Fatima, from the custody of her ‘surrogate mother’ Farzana Naheed.
The unusual nature of the case can be judged by the fact that Siddiqui was allegedly slapped on the order of a lower court judge, who found the case to be ‘frivolous’. The Supreme Court, however, has decided to take up the matter in a hearing on November 2.
Siddiqui based his case on a claim that Farzana was not his wife but a surrogate mother who became pregnant through artificial insemination. He said that since he and his wife were childless, they had opted for artificial insemination.
Siddiqui said Naheed was selected after medical examinations in 2004 and obtaining her consent to act as a surrogate mother, since he and his wife were unable to have children.
Naheed, the ‘biological mother of Fatima’, had signed an agreement with Siddiqi stating that she would not claim custody of the child. Siddiqui emphasised that this was never a marriage contract.
The petitioner, who works as clinical technologist in New York, said “I came to Pakistan in 2004 to have a child from a Pakistani woman.” He said he had advertisements published for women willing to be surrogate mothers. Farzana replied to the advertisement and approached him, along with her relatives, and agreed to act as a surrogate in exchange for money. However, Siddiqi alleged, Farzana and her relatives started blackmailing him for more money on one pretext or another during her pregnancy. This was the beginning of a number of legal battles.
The issue intensified when the infant was handed over to Farzana after she filed a habeas corpus petition with a district and session judge of Rawalpindi back in 2010. The civil judge, Ijaz Ali, dismissed the petition and granted custody to Farzana.
The judge said he had concluded that Farzana was the real mother as she was married to Siddiqi, adding that it would be wrong to rob the baby of her mother`s love and care. By the time the case reached the court, the couple had divorced, the judge said.
Farooq stated in his petition that since his wife, Yasmin, had paid money to Farzana to have the child, the latter could not be treated as Fatima’s real mother.
Farzana contradicted Siddiqui’s stance before the lower judiciary, saying that she had been married to him and that the marriage was an arranged one. She held before the court through her counsel that the pregnancy and birth were normal and Siddiqui failed to prove his arguments.
Dr Aslam Khaki, an expert on Islamic jurisprudence, said “In my opinion, as for as the custody of child is concerned, surrogate mother has preference over the father because Quran points out and appreciates the three roles of a mother: That she bears the child in her womb, that she delivers the child with pain and that she breastfeeds the child for two years.”
However, as far as financial liabilities and rights are concerned, the child’s custody should be given to the biological parents, Dr Khaki said.
Published in The Express Tribune, October 21st, 2012.