Baby Manji Yamada Vs.
Union of India & ANR. [2008] INSC 1656 (29 September 2008)
Judgment
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
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 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 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
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 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.
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 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 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 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.
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 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:
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