MANU/SC/8083/2008

Equivalent Citation: AIR2009SC 84, JT2008(11)SC 150, 2008(4)KLT306(SC ), (2009)3MLJ929(SC ), (2008)41OC R708, 2008(4)RC R(C ivil)732,
2008(13)SC ALE76, (2008)13SC C 518

IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. 369 of 2008
Decided On: 29.09.2008
Appellants: Manji Yamada
Vs.
Respondent: Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and Mukundakam Sharma, JJ.
Case Note:
Constitution - Rights of child - Article 32 of the Constitution of India, 1950
(Constitution) - Commissions for Protection of Child Rights Act, 2005
(CPCRA) - Petition filed u/a 32, Constitution against directions of High
Court by grandmother of appellant - Held, constitution of National and state
commissions for protection of child rights and children courts for providing
speedy justice in offences against children and related matters provided
under CPCRA - No complaint made by anybody relating to child - Direction
given to any aggrieved person to approach Commission constituted under
CPCRA - Writ petition disposed of
Ratio Decidendi:
"Commission constituted under CPCRA has right to inquire into complaints
or take action suo motu notice relating to violation of child rights and
development of children and provide relief in such matters with appropriate
authorities."
JUDGMENT
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

26-04-2020 (Page 1 of 5) www.manupatra.com Jamia Millia Islamia

 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,

26-04-2020 (Page 2 of 5) www.manupatra.com Jamia Millia Islamia

 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;
(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
) 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
26-04-2020 (Page 3 of 5) www.manupatra.com Jamia Millia Islamia
 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".
1 0 . 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.
1 2 . 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 moto
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

26-04-2020 (Page 4 of 5) www.manupatra.com Jamia Millia Islamia

 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.
1 7 . 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.

© Manupatra Information Solutions Pvt. Ltd.

26-04-2020 (Page 5 of 5) www.manupatra.com Jamia Millia Islamia