Baby Manji Yamada v. Union of India & Anr.

Judgment

[2008] 13 S.C.R. 1126 BABY MANJI YAMADA UNION OF INOIA & ANR. (Writ Petition (C) No. 369 of 2008) SEPTEMBER 29, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Constitution of India, 1950: Article 32 - Child welfare - Surrogate baby - Writ petition challenging directions of High Court relating to production/custody of surrogate baby- Maintainability of - Held: Not maintainable - Complaint in this regard was required to be made before the Commission constituted under 2005 Act - Commissions for protection of Child 0 Rights, 2005. Words and phrases: Surrogacy, gestational surrogacy, Altruistic surrogacy, Commercial surrogacy - Meaning of - Discussed. A writ of habeas corpus was filed in High Court by respondent no. 3-NGO, wherein certain directions were passed relating to the custody/production of a surrogate baby. The present petition is filed by grandmother of the surrogate baby on her behalf challenging the directions of the High Court.

It was stated in the petition that the biological parents of surrogate baby had come to India in 2007 and had chosen a surrogate mother in Gujarat and entered into a surrogacy agreement with her. The surrogate baby was born on 25.7.2008. On 3.8.2008, the baby was moved to Arya Hospital following the law and order situation in Gujarat. Meanwhile, the genetic father had to return to Japan due to expiration of his visa. The stand of respondent no. 3-NGO was that there is no law governing surrogation in India and in the name of surrogation .. lot of irregularities were being committed. The petitioner BABY MANJI YAMADA v. UNION OF INDIA&ANR. · also questioned the locus standi of respondent ne. 3 to A file habeas corpus petition. Another grievance of the peti- _ Jioner was that the permi$sion to trayel ~o far as the child _ .was concenned including issuance of a Passport was under consideration -of the. Central Government; but no orders had been passed In -that regard.

Disposing of the Writ .Petition, the Court HELD :

1Surrogacy is a well known method of reproduction whereby a woman agrees to become preg- - nant for the purpose of gestating and giving birth to a c child she will not raise but hand aver to a coAtracted party. - _The ·word ·~surrogate", from Latin "subrogare", means "appointed to acfin the place of". The intended parent(s) is the indivfdual or couple who intends to rear the chii'cl . after its birth. hi "traditional surrogacy" (also known as 0 the Straight method) the surrogate is pregnant with her · own biological child, but this child was ·oonceived with _ · theJntention of relinquishing the chHd to be raised by oth-. ers; by the biological father and possibly his spouse or partner, ejther male or female. 'In "gestational sur,rogacy" .

E (also know as the Host method) the surrogat~- becomes p~egna_n~ through embryo transfer with a chiid of -whi.ch she is not the biological mother~ She may have .made crn. ar~angenient to relinquish it to. the biological mother or father to raise, or to a parent wllo is· unrelated to the@ild (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 car-· - rier. ''.Altruistic surrogacy" is a situation where the'surrogate receives no financial reward for her pregnancy_ or the relinq'uishment of the child (although usualty all ex-_ G penses related to the pregnancy and birth are.paid by the intended parents such as medical ex}:)enses, ~maternity clothing, and other related expenses). "Commercial ~ur- , rogacy" is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her wo-mb and is H . [2008]

13 S.G.R A 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 countries including in India where due to excellent medical infrastructure, high interna- 8 tional demand and ready availability of poor surrogates it is reaching industry proporti~ns. Commercial surrog.acy is sometimes referred to by tlie emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnanci,es" or "baby farms". Surrogates may be relatives, c friends, or previous strangers: Many surrogate arrangements are. made through agencies that .help match up intended parents with women yvho want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involv!:!d. Surrogacy ar.rangements can _ 0 also be made independently.

In c:;ompensated .surrogacies, · the amount a surrogate receives varies widely from almost · nothing above expenses to over $ 30,000. Careful screeliing'is needed to assure their health as the gestational carrier incurs potential obstetrical risks. [Paras 5to12] [1133,B; 1133, D-E; 1133,F-H; t134, A-C; 1134,F-H] · 2. The Commissions for Protection of Child Rights Act, 2005 has been ~acted for the constitution of a National Commission and State Commissions for protection of child rights and children's courts for providing speedy F trial of offences against childrer:i or of violation of child · rights and for matters connected therewith or incidental thereto. 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)

G. 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 t<? such children, or take up the issues arising out of BABY MANJI YAMADAv:-UNION OF INDIA&ANR. such matters with ap.propriate authorities. No complaint A · has been made by anybody relating to the child, the petitioner in this Court. If the petitioner has any grievance in relation to the order to be passed by the Central Govern- · ment, such remedy, as is available in law may be availed. [Paras 4, 13, 14and17] [1130,H; 1131,A; 1135,A-C; 1135;F] CIVI~ ORIGINAL JURISDICTION: Writ Petition (Civil) No, 369 of 2008 (Under Article 32 of The Constitution of India) Indira Jaising, Lalit Mohini Bhat, Hetu Arora and Naveen · C · R. Nath for the Petitioner. G.E. Vahanvati, Abhinav Sharma, R.K. Singh, Narend~r.

Tripathi, Debasis Misra, Devadatt ~am~t, Sushma Suri, Saket · Sikri, V.K. Rao and madhu Sikri for the Respondents. . The Judgment of the· court was delivered·by ·· DR. ARIJIT PASAYAT, J. 1. This petition under Article 32 of the Constitution of India, 1950 (hereinafter for short 'the Con" stitution_') raises some important questions.

2Essentially 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 Petitio11 before the Rajasthan .High Court was filed by M/s. SATYA, stated to be an NGO, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was-filed by Mis. SATYA wherein the Union of India through Ministry of Home Affairs, State of Rajasthan through - 0 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. lkufumi Yamada came to India in 2007 and SUPREME COU~.T REPORTS (2008) t3 S.C.R .. 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 surrogate mother on the other side.

It appears from some of the statements made " that there werematrimonial discords betv.(een the biological ·parents. The child was born on 251h July, 2008. Ori 3rd August, · 2008 the chHd was moved to Arya Hospital in Jaipur following a . law and order situation in Gujarat and she was being proviged . with much needed care including being breastfed by a woman. ·it is stated-by the petitioner that the genetic father Dr. lfukumi Yamada h~d to return to Japan due to expiration of his visa. It is also stated that the Municipality at Anand has issued q 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 oame of surrogation lot of irregularities are being committed. Accorc~ting t.o it, i'n the name .. of surrogacy a money making racket is being perpetuated. It is also the stand of the said respondent that the Uniqn of India· should enforce stringent laws relating to surr9gacy.

The present petitioner has questioned the locus standi of respondent No. 3 to file a 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 U:le petition before the High Court was styled as a "Public Interest Litigation" there was no element of pubfic intere-st involved. Learned cqunsel for respondent No. 3 with reference to the counter-affidavit filed in this Co1,1rt had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain state- . ments 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 involv.ed 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 consti- BABY MANJI YAMADA v. UNION OF· INDIA & ANR. [DR. ARIJIT PASAYAT, J.] tution of a National Commission and State Commissions for A . protection ,of child rights and children's courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. Section 13 which appears in Chapter 111 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:- · examine and review the safeguards provided by or c under any law for the time being· in fo~ce for the . protection of child rights and recommend measures for their effective implementation; . present to the ~entral Government, annually and at D . such other intervals, as the Commission may deem .fit, reports upon the working of those safeguards; inquire into violation of child rights and recommend ~~initiation of proceedings in such cases; 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, i pornography and prostitution and recommend ~p-propriate remedial measures. look into the matters relating to children in. need 'Of special care and protection including children in distress, marginalized and disadvantaged children; children in conflict with law, juveniles, children without famify and children of prisoners and recommend G appropriate remedial measures; study treaties and other internation~ri~struments and undertake periodical review of existing policies, programmes and other activities on child rights and [2008]

13·S.C.R. make recommendations for their effective implementation in the best interest of children; Undertake and promote research in the field of child rights; 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; 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; inquire into complaints and take suo motu notice of matters relating to, - deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection and development of children; (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 such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions BABY MANJI YAMADA v. UNION OF INDIA & ANR. [DR. ARIJIT PASAYAT, J.] 2) The Commission shall not inquire into any matter which is pending before a State Com.mission or any other Commission duly constituted under any law for the time being in force."

5Surrogacy 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 o:arrier, carry the pregnancy to delivery after having . · been implanted with an embryo. In some cases surrogacy is C · the only available optiqn for parents who wish to have a child that is biologically r~lated to them. The word "surrogate", from Latin "sµbrogare", 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.

6In "traditional surrogacy" (also. known as the Straight method) the surro~ate 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.'

7In "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 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 G donation or is the result of a donated embryo). The suuogate 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 relinquish- SUPREME. COURT REPORTS A. ment of the ohiid (although usually pll expenses related'to the pregnancy and birth are paid by the intended parents such as medi~ cal expenses, maternity clothing, and other related expenses).

9"Commercial surrogacy" is a· form of surrogacy in. which 8 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 c5f being parents. This medical procedure is legal in several countries including in India where due to excellent medical infr~structure, high international demand C · and ready availability-of po~r.surrogates it is ref_ching industry proportions. Commercial surrogacy is sometimes.referred.to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms".

10Intended parents may arrange a surrogate pregnancy D because a woman who intends to parent is infertile in such a .. way that she cannot carry a pregn_ancy to term. Examples incltide a woman ·w~o has had a hysterectomy, has a uter~ne malformafioi1, has had recurrent pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A fe- E male intending parent may also be fertile and healthy, but unwilling to unde:rgo pregnancy . . 11 :Alternatively, the intended parent_ may be a single male · · or a riale homosexual couple.·

12Surrogates may be relatives, friends, or previous strangers. Many s~rrogate arrangements _are made through agericies that heip match up intendeo par~mts with women who . want to be surrogates for a fee. T.he ag·encies often help·man- ... age the complex medical and legal aspects involved. Surra- . ~ gacy arrangements can also be made independently. In compensated sur"rogacies the amount a surrogate receives varies widely from almost r:iothing above expenses to over $ 30, 000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks. · BABY MANJI YAMADA v. UNION OF INDIA & ANR. [DR. ARIJIT .PASAYAT, J.]

13I~ the present case, if any action is. to be taken that has to be taken by th~ Commission. It _has a right to inquire into com~ "plaints and.even to~ake suo motu notice of matters relating to, (i) deprivation and._vj.olation of child rights (ii) non-implementation of laws providing for protection arid gevelopment of children and (iii) non-compliance of policy decisions, guidelines or instructions . aimed at mitigating· hardships to and ensuringwelfare of the ch~~ dreh and to provide relief to such children, or take up the issues · arising out of such matters with appropriate authorities. · 14 .. It appears that till now no complaint has been made by · anybody relating to the child, the pet[tioner 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 int9 account various aspects necessary to be taken note of.

16Another 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 . grandmot~er of the child requesting for such an order. · · 17. Learned Solicitor General, on instruction~;, stated that if a comprehensive application, as required under law, is filed within a week, the same shall be disposed of expeditiously and F not later than four weeks from the date of receipt of such application. If the petitioner ha~ any grievance in relation to the order · to be passed by the. Central Government, such remedy, as is available in law may be availed.

18The 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. D.G. Writ Petition Disposed of.