REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C)   NO.   369 OF 2008   

Baby Manji Yamada          Petitioner  

Versus

Union of India & Anr. Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. This petition under Article 32 of the Constitution of India,

1950 (hereinafter  for short 'the Constitution')  raises some

important questions.

2. Essentially challenge is to certain directions given by a

Division  Bench  of  the  Rajasthan  High  Court  relating  to

production/custody  of  a  child  Manji  Yamada.  Emiko

Yamada, claiming to be grandmother of the child, has filed

this petition.  The Writ  Petition before  the Rajasthan High

Court was filed by M/s. SATYA, stated to be an NG0, the

opposite  party  No.  3  in  this  petition.  The  D.B.  Habeas

Corpus Writ Petition No. 7829 of 2008 was filed by  M/s.

SATYA  wherein  the  Union  of  India  through  Ministry  of

Home  Affairs,  State  of  Rajasthan  through  the  Principal

Secretary,  The  Director  General  of  Police,  Government  of

Rajasthan  and  the  Superintendent  of  Police  Jaipur  City

(East), Jaipur were made the parties. There is no dispute

about  Baby  Manji  Yamada  having  been  given  birth  by  a

surrogate mother.   It  is stated that the biological parents

Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in

2007 and had chosen a surrogate mother in Anand, Gujarat

and a surrogacy agreement was entered into between the

biological father and biological mother on one side and the

2

surrogate mother on the other side. It appears from some of

the statements made that there were matrimonial discords

between the biological parents.  The child was born on 25th

July, 2008. On 3rd August, 2008 the child was moved to

Arya  Hospital in Jaipur following a law and order situation

in  Gujarat and she was being provided with much needed

care including being breastfed by a woman. It is stated by

the petitioner that the genetic father Dr. Ifukumi Yamada

had to return to Japan due to expiration of his visa. It is

also  stated  that  the  Municipality  at  Anand  has  issued  a

Birth Certificate indicating the name of the genetic father.

3.  Stand of respondent No. 3 was that there is no law

governing  surrogation  in  India  and  in  the  name  of

surrogation  lot  of  irregularities  are  being  committed.

According to it, in the name of surrogacy a money making

racket is being perpetuated. It is also the stand of the said

respondent that the Union of India should enforce stringent

laws relating to  surrogacy.  The  present  petitioner  has

questioned the locus standi  of  respondent No.  3 to file  a

3

habeas  corpus  petition.  It  is  pointed  out  that  though

custody of the child was being asked for but there was not

even an indication as to in whose alleged illegal custody the

child was. It  is stated that though the petition before  the

High Court was styled as a “Public Interest Litigation” there

was  no  element  of  public  interest  involved.    Learned

counsel for respondent No. 3 with reference to the counter-

affidavit filed in this Court had highlighted certain aspects

relating  to  surrogacy.  The  learned  Solicitor  General  has

taken  exception  to  certain  statements  made  in  the  said

counter affidavit and has submitted that the petition before

the High Court was not in good faith and was certainly not

in public interest.

4. We need not go into the locus standi of respondent

No. 3 and/or whether bonafides are involved or not. It is to

be  noted  that  the  Commissions  For  Protection  of  Child

Rights Act, 2005 (hereinafter for short 'the Act') has been

enacted for the constitution of a National Commission and

State  Commissions  for  protection  of  child  rights  and

children's  courts  for  providing  speedy  trial  of  offences

4

against  children  or  of  violation  of  child  rights  and  for

matters connected therewith or incidental thereto. Section

13  which  appears  in  Chapter  III  of  the  Act  is  of

considerable importance. The same reads as follows:

"13. Functions of Commission.

(1)  The Commission shall perform all or any of the following functions, namely:-

(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;

(c)  inquire  into  violation  of  child  rights  and recommend  initiation  of  proceedings  in  such cases;

(d) examine all factors that inhibit the enjoyment of  rights  of  children  affected  by  terrorism, communal  violence,  riots,  natural  disaster, domestic  violence,  HIV/AIDS,  trafficking, maltreatment,  torture  and  exploitation, pornography  and  prostitution  and  recommend appropriate remedial measures.

(e) look into the matters relating to children in need  of  special  care  and  protection  including children  in  distress,  marginalized  and

5

disadvantaged children, children in conflict with law,  juveniles,  children  without  family  and children  of  prisoners  and  recommend appropriate remedial measures;

(f)  study  treaties  and  other  international instruments and undertake periodical  review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;

(g) Undertake and promote research in the field of child rights;

(h)  spread  child  rights  literacy  among  various sections of the society and promote awareness of the safeguards  available  for  protection of  these rights through publications, the media, seminars and other available means;

(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or  institution  meant  for  children,  under  the control of the Central Government or any State Government  or  any  other  authority,  including any  institution  run  by  a  social  organisation; where  children  are  detained  or  lodged  for  the purpose  of treatment,  reformation or protection and take up with these authorities for remedial action, if found necessary;

(j)  inquire  into  complaints  and  take  suo  motu notice of matters relating to, -

(i) deprivation and violation of child rights;

  (ii) non-implementation of laws providing for protection and development of children;

6

(iii)non-compliance  of  policy  decisions, guidelines  or  instructions  aimed  at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such  matters  with  appropriate  authorities; and

(k)  such other functions as it may consider necessary  for  the  promotion  of  child  rights and any other matter incidental to the above functions

2)  The  Commission  shall  not  inquire  into  any matter  which  is  pending  before  a  State Commission  or  any  other  Commission  duly constituted under any law for the time being in force."

5. Surrogacy  is  a  well  known  method  of  reproduction

whereby  a  woman  agrees  to  become  pregnant  for  the

purpose of gestating and giving birth to a child she will not

raise but hand over to a contracted party.  She may be the

child’s  genetic  mother  (the  more  traditional  form  for

surrogacy) or she may be, as a gestational carrier, carry the

pregnancy to delivery after having been implanted with an

embryo.   In  some  cases  surrogacy  is  the  only  available

option  for  parents  who  wish  to  have  a  child  that  is

biologically related to them.

7

The word “surrogate”, from Latin “subrogare”, means

“appointed to act in the place of”.  The intended parent(s) is

the individual or couple who intends to rear the child after

its birth.

6. In “traditional surrogacy” (also known as the Straight

method) the surrogate is pregnant with her own biological

child,  but  this  child  was conceived  with the  intention of

relinquishing  the  child  to  be  raised  by  others;  by  the

biological father and possibly his spouse or partner, either

male  or  female.  The  child  may  be  conceived  via  home

artificial  insemination  using  fresh  of  frozen  sperm  or

impregnated  via  IUI  (intrauterine  insemination),  or  ICI

(intra cervical insemination) which is performed at a fertility

clinic. '

7. In “gestational surrogacy”  (also know as the  Host

method)  the  surrogate  becomes  pregnant  via  embryo

transfer  with a  child  of  which she  is  not  the  biological

8

mother.  She  may  have  made  an  arrangement  to

relinquish it to the biological mother or father to raise, or

to a parent who is themselves unrelated to the child (e. g.

because the child was conceived using egg donation, germ

donation  or  is  the  result  of  a  donated  embryo).  The

surrogate mother may be called the gestational carrier.

8. “Altruistic  surrogacy”  is  a  situation  where  the

surrogate  receives  no  financial  reward  for  her

pregnancy or the relinquishment of the child (although

usually all expenses related to the pregnancy and birth

are  paid  by  the  intended  parents  such  as  medical

expenses,  maternity  clothing,  and  other  related

expenses).

9. “Commercial  surrogacy”  is  a  form of  surrogacy  in

which  a  gestational  carrier  is  paid  to  carry  a  child  to

maturity in her womb and is usually resorted to by well off

infertile couples who can afford the cost involved or people

who save and borrow in order to complete their dream of

being  parents.  This  medical  procedure  is  legal  in  several 9

countries including in India where due to excellent medical

infrastructure,  high  international  demand  and  ready

availability  of  poor  surrogates  it  is  reaching  industry

proportions. Commercial surrogacy is sometimes referred to

by the emotionally charged and potentially offensive terms

"wombs for rent", "outsourced pregnancies" or "baby farms".

10. Intended parents may arrange a surrogate pregnancy

because a woman who intends to parent is infertile in such

a way that she cannot carry a pregnancy to term. Examples

include  a  woman  who  has  had  a  hysterectomy,  has  a

uterine malformation, has had recurrent pregnancy loss or

has a healthy condition that makes it dangerous for her to

be pregnant.  A  female intending parent may also be fertile

and healthy, but unwilling to undergo pregnancy.

11. Alternatively, the intended parent may be a single

male or a male homosexual couple.

12. Surrogates  may  be  relatives,  friends,  or  previous

strangers. Many surrogate arrangements are made through

10

agencies that help match up intended parents with women

who want to be surrogates for a fee. The agencies often help

manage  the  complex  medical  and legal  aspects  involved.

Surrogacy arrangements can also be made independently.

In  compensated  surrogacies  the  amount  a  surrogate

receives varies widely from almost nothing above expenses

to over  $ 30,000.   Careful  screening is  needed  to assure

their  health  as  the  gestational  carrier  incurs  potential

obstetrical risks.

13. In the present case, if any action is to be taken that

has to be taken by the Commission. It has a right to inquire

into complaints and even to take suo motu notice of matters

relating to,  (i)  deprivation and violation of  child  rights (ii)

non-implementation  of  laws  providing  for  protection  and

development of children and (iii)  non-compliance of policy

decisions,  guidelines  or  instructions  aimed  at  mitigating

hardships to and ensuring welfare  of  the children and to

provide relief to such children, or take up the issues arising

out of such matters with appropriate authorities.  

11

14. It appears that till now no complaint has been made by

anybody relating to the child, the petitioner in this Court.

15.  We,  therefore,  dispose  of  this  writ  petition  with  a

direction that if any person has any grievance, the same can

be ventilated before the Commission constituted under the

Act. It needs no emphasis that the Commission has to take

into account various aspects necessary to be taken note of.

16. Another  grievance  of  the  petitioner  is  that  the

permission  to  travel  so  far  as  the  child  is  concerned

including issuance of a Passport is under consideration of

the Central Government; but no orders have been passed in

that regard. The other prayer in the petition is with regard

to an extension of the visa of the grandmother of the child

requesting for such an order.

17. Learned Solicitor General, on instructions, stated that

if  a comprehensive  application,  as required  under  law,  is

filed  within  a  week,  the  same  shall  be  disposed  of

expeditiously and not later than four weeks from the date of

receipt  of  such  application.  If  the  petitioner  has  any 12

grievance  in  relation  to  the  order  to  be  passed  by  the

Central  Government,  such remedy,  as  is  available  in law

may be availed.

18. The  writ  petition  is  accordingly  disposed  of  without

any order as to costs. All proceedings pending in any High

Court relating to the matter which we have dealt  with in

this petition shall stand disposed of because of this order.

                                            ……….………………………...…J. (Dr. ARIJIT PASAYAT)

……………………………….……J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: September 29, 2008

13