THE RELEVANCE OF BABY MANJI YAMADA 83

THE ‘BABIES M’:

THE RELEVANCE OF BABY MANJI YAMADA V. UNION OF
INDIA (UOI) AND IN THE MATTER OF BABY “M”
JWALA D. THAPA*
The two cases dealt with in this paper highlight a modern day
reproductive practice, surrogacy motherhood. The relevance of the
comparative analysis lies in their role in highlighting the legal void.
The focus on the absence of the law has also been amplified by the
intense media scrutiny public debates and the legislative activism
that followed in the wake of these two cases, thereby enhancing the
legal regulation of surrogacy in their respective jurisdictions.

I. INTRODUCTION

The Babies ‘M’ of the cases1 mentioned in this paper were

both, incidentally baby girls, whose lives were separated by geographical
miles and time yet intertwined by one modern social practice, commercial
surrogacy. The practice of surrogacy is ancient2 but surrogacy in exchange
for money evolved with the development of the science relating to infertility
and the possibilities of “non-coital reproduction [which] have given society
awesome opportunities”.3

* Research Assistant, WB National University of Juridical Sciences, Kolkata. I

would like to thank Prof. Mahendra P. Singh, Vice Chancellor, WB NUJS, Kolkata
for going through the first draft of this paper and also for his invaluable
suggestions. I would also like to extend my gratitude to Dr. Vishwas Devaiah,
Assistant Professor, WB NUJS, Kolkata for his helpful comments.
1
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518 and In
the Matter of Baby M, 217 N.J. Super 313, (1987).
2
Biblical and Indian mythological stories document the prevalence of surrogacy
as a practice in the ancient times. For an example of the references in the Bible,
see Jamie Levitt, Biology, Technology And Geneology: A Proposed Uniform
Surrogacy Legislation, 25 COLUM. J. L. & SOC. PROBS. 451,454 (1992). Also see,
Usha Rangachary Smerdon, Crossing Bodies, Crossing Borders: International
Surrogacy Between The United States And India, 39 CUMB. L. REV. 15, 16(2009)
for both Biblical as well as Hindu mythological references.
3
In the Matter of Baby M, 217 N.J. Super 313, (1987) at 333

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84 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

Commercial surrogacy is indeed a modern practice as opposed

to traditional surrogacy. Infertility of either of the partners and the desire
for a child has led to them into looking for alternate ways of child bearing.4
The development of assisted reproductive technology has made it possible
for a child to be born through a surrogate mother to whom it is not
genetically related. This is known as gestational surrogacy.5

In traditional surrogacy, the egg is of the mother who gestates

the child making her the biological/genetic mother. However, traditional
surrogacy is given a commercial angle when the surrogate mother is
implanted with a fertilised egg, which might be fully genetically related to
the intending parents or only to one of them and carries the baby to full
term, all in exchange for money.6 The clichéd expression of ‘wombs for
rent’ was coined when it became possible for fertilised eggs to be implanted
and, thus, grow to a full term baby in any womb, sometimes with the help
of cross-border surrogacy mothers.7

Baby Melissa Stern (hereinafter Baby Melissa), known as

Baby ‘M’ for most of the trial period and earlier parts of the Court’s
judgment (to protect her identity) was born on the 27th of March 1986 in
Bergen County, New Jersey, USA,8 whereas Baby Manji Yamada was
born on the 25th of July 2008 in Anand, Gujarat, India.9 Their young lives
4
Infertility is seen as a health problem and statistics point out to the prevalence
of infertility as being from 8-10% to 15% amongst Indian women. [See Imrana
Qadeer and Mary E. John, The Business and Ethics of Surrogacy, 44(2) ECO. &
PL. WEEKLY 10 (2009) as well as The Preamble to the Draft Assisted Reproductive
Technologies (Regulation) Bill, 2010]
5
See ANDREW GRUBB, JUDITH LAING AND JEAN MCHALE, PRINCIPLES OF MEDICAL
LAW 832-833(Oxford University Press, 2010), JEAN MCHALE AND MARIE FOX,
HEALTH CARE LAW: TEXT AND MATERIALS 782 (London: Sweet and Maxwell,
2007), EMILY JACKSON, MEDICAL LAW, TEXT CASES AND MATERIALS 828-832 (Oxford
University Press, 2010).
6
Ibid.
7
See Wombs for rent: A tale of two mothers, BBC News World, July 28, 2011,
available at http://www.bbc.co.uk/news/world-14138394, (Last visited on
August 1, 2011).
8
Supra note 3, 341.
9
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518 at 521,
para 4.

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 THE RELEVANCE OF BABY MANJI YAMADA 85

were subjected to the vagaries of the legal process long before they could
understand the system. More importantly their birth and the events
incidental thereto, led to the inception of laws relating to surrogacy in
their respective nation states. The issues raised in these two cases were
different but their common relevance lies in them being the first of their
kind in the context of surrogacy in their respective jurisdictions.

This paper aims to look into both these cases, discuss the facts
and make a comparative commentary on them. The paper will analyse
the cases focusing on the background in which they were decided and on
their impacts in the development of law relating to surrogacy in the India
and the State of New Jersey, where the cases were decided respectively.

II. DIFFERENT LIVES AND ABSENT LAWS

Both Baby Melissa and Baby Manji were born when the
commercial surrogacy industry was booming, in the absence of any
legislation regulating commercial surrogacy in their respective places of
birth. At the time of the decision of the Superior Court of New Jersey in
Baby Melissa’s case, the Court acknowledged this legal void.10

The absence of law relating to surrogacy in India was raised in

the case of Baby Manji before the Supreme Court of India, where it was
alleged that “….in the name of surrogation lot of irregularities are being
committed…..in the name of surrogacy a money making racket is being
perpetuated..[and]…. that the Union of India should enforce stringent
laws relating to surrogacy.”11

10
217 N.J. Super. 313, 333 (1987) :
“…Unfortunately, the law is slow to react to the rapid advance
of science and changing human behaviour…. This minimal
pace is made apparent when it is realized that as of this date
not one state in this nation has adopted a law that specifically
addresses either affirmatively or negatively the concept of
surrogate parenting although many studies are in process
and legislation has been introduced. There are two bills
pending in the New Jersey Legislature.” [Emphasis supplied].
11
Supra note 6, p.521, para 5.

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86 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

At the time of the decision of Baby Manji, the fertility clinics

were subjected to regulation by the 2006 guidelines of the Indian Council
of Bio-medical Research (hereinafter ICMR Guidelines) which validated
surrogacy contracts. However, it specifically considered surrogacy for
infertile married couples and the reading of the guidelines clearly proposes
gestational surrogacy with the baby required to be genetically related to
the intending parent and mandating them to adopt the baby within six
weeks of birth.12 Thus, the Guidelines aimed at preventing multiple
parentages which could result in a situation when there were donors of
either of the gametes and also gestational surrogacy. However, in practice,
gestational surrogacy with non-genetic gametes was also carried out by
the clinics.

The city of Anand, Gujarat is acknowledged as the hub of

surrogacy in India.13 Other cities like Bombay have come into the limelight
with the report of an Israeli gay couple who became parents through a

12
See Statement of Specific Principles for Assisted Reproductive Technologies,
ETHICAL GUIDELINES FOR BIO-MEDICAL RESEARCH AND HUMAN PARTICIPANTS,
Indian Council of Medical Research 101-102 (New Delhi, 2006). The Guidelines
mandated that the intending parents agree to adopt the baby after six weeks
of birth and that they were to undergo genetic( DNA) fingerprinting to prove
that they were the intending parents and the record was to be kept with the
clinic. Available at <www.icmr.nic.in/ethical_guidelines.pdf> (Last visited
on May 21, 2011).
13
“In commercial surrogacy agreements, the surrogate mother enters into an
agreement with the commissioning couple or a single parent to bear the burden
of pregnancy. In return of her agreeing to carry the term of the pregnancy, she
is paid by the commissioning agent for that. The usual fee is around $25,000 to
$30,000 in India which is around 1/3rd of that in developed countries like the
USA. This has made India a favourable destination for foreign couples who
look for a cost-effective treatment for infertility and a whole branch of medical
tourism has flourished on the surrogate practice. ART industry is now a 25,000
crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct
reputation as a place for outsourcing commercial surrogacy. It seems that wombs
in India are on rent which translates into babies for foreigners and dollars for
Indian surrogate mothers.” India – a reproductive tourism destination, Law
Commission of India Report No. 228, Para 1.7, page 11.Also see Anand in
Gujarat surrogacy hub for childless Brits, EXPRESSINDIA, December 10, 2007,
available at <www.expressindia.com/latest-news/Anand-in-Gujarat....../248727/
> (Last visited on May 21, 2011).

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 THE RELEVANCE OF BABY MANJI YAMADA 87

surrogacy arrangement in the city.14 Recently, a Spanish gay couple also

became parents through a surrogacy arrangement in Delhi.15

Infertility clinics in India are baby makers. They treat couples

for infertility and in case of their inability to have a baby through natural
reproductive process, use artificial insemination procedures and also assit
in finding surrogates. For this, they involve one of the women from their
database of prospective surrogates and arrange meetings with the infertile
couples. Many a times, the couples seeking surrogacy are foreign couples
and they are assisted by the infertility clinics in their endeavour to be
parents. These clinics also arrange donors of gametes when required,
determine the money involved, arrange for legal help to work out the
terms of the surrogate agreement and the benefits to each of the parties,
supervise the pregnancy of the surrogate mother, monitor her during the
gestation period, successfully deliver the child, obtaining of birth
certificates from the municipal corporation and the final formalities to
ensure that the baby is handed over to the intending parents. The foreign
exchange rates make India even more lucrative and easier for international
couples to decide on Indian surrogates. 16

14
See Israeli gay case to hit surrogacy biz in India, THE TIMES OF INDIA, May 11,
2010, available at <www.articles.timesofindia.indiatimes.com/2010-05-11/india/
28289465_1_1surrogacy-fertility-clinics-surrogate-mother> (Last visited on
May 21, 2011).
Also see Law Commission of India Report No.228, 2009,14-15.
15
See Spanish gay couple’s child dream comes true in India, SIFYNEWS, February
16, 2011, available at <www.sify.com/news/spanish-gay.......lcqt4jbighi.html>
(Last accessed on May 22, 2011). See the NDTV video Ahmedabad: Twin hope
for gay couple, May 31, 2011, where a Spanish gay couple, incidentally the first
in Gujarat ,to became parents to twins through surrogacy from Ahmedabad,
available at <www.ndtv.com/video/player/news/ahemadabad-win-hope-for-
gay-couple/201125> (Last visited on May 31, 2011).
16
See SAMA Team, Assisted Reproductive Technologies: For whose Benefit?
44(18) ECO. & PL. WEEKLY 25 (2009) .
Also, see SAMA Women’s Health, The Regulation of Surrogacy in India:
Questions and Complexities, April 23, 2011 at http://samawomenshealth.
wordpress.com/2011/04/23/the-regulation-of-surrogacy-in-india-questions-
and-complexities/, (Last visited on July 25, 2011)

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88 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

With each successful birth, the stamp on the legality of their

activities is sanctioned in absence any State or Central legislation. Although
the ICMR Guidelines do exist, there is no central or state body to ensure
that these regulations are followed strictly when it comes to surrogacy.17

Incidentally, financial considerations seem to be the main reason

for the surrogates to participate in these arrangements. These agreements
are carried on with the help of local lawyers and in case of problems,
parties settle and move ahead with whatever comes out of the agreement
as long as one gets the baby and the other, the money for the surrogacy.
The infertility clinics maintain a low profile in the absence of a concrete
law. The uncertainty regarding the rights and duties of the parties involved,
coupled with the absence of specialised forums for redressal of grievances
related to surrogacy ensures that matters relating to breach of contract,
non-payment, exploitation and violation of human rights are swept under
the carpet.

III. BABY MELISSA: THE WORLD WAKES UP TO SURROGACY

Baby Melissa was born to William Stern, who was married to

Elizabeth Stern, through artificial insemination of Mr. Stern’s seminal fluid in
the womb of surrogate mother Mary Beth Whitehead. The latter was married
to Richard Whitehead and was already a mother of two school going children.
In the judgment, much emphasis is laid on the background of these individuals
to justify the exercise of the parens patriae jurisdiction of the Court on
how it is the “…..power of the sovereign (in this case the State of New
Jersey by its judicial branch) to watch over the interests of those who are
incapable of protecting themselves”. in this case, Baby Melissa.

The case was decided by the Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County. It arose out of:

a. an ex-parte application filed by the Sterns for an order

to show cause as to why the Court should not issue an
order for the summary judgment to enforce a surrogacy
parenting contract;

17
Supra note 9.

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 THE RELEVANCE OF BABY MANJI YAMADA 89

and,
b. a complaint filed by the Sterns seeking to enforce a
surrogate-parenting agreement, compel Mrs. Mary Beth
Whitehead to surrender the infant born to her, restrain
any interference with their custody of the child, terminate
her parental rights and allow adoption of the child by
Mrs. Stern.18

Thus, the issues before the Court were:

a. Whether there was a breach of contract of surrogacy?

b. Whether it is in the best interest of Baby Melissa to be

allowed to grow up with her surrogate mother or her
genetic parents?

c. Whether the claim made by the parents of Mrs. Whitehead

as Baby Melissa’s grandparents and their prayer to be
allowed to have visitation rights could be entertained?

The Court, fully aware that it was deciding on a crucial social

issue in the absence of any legislation, approached the case on the following
terms:

“….Many questions must be answered; answers must

come from legislation. If there is no law then society will
suffer the negative aspects of this alternative reproduction
vehicle that appears to hold out so much hope to the
childless who make up a substantial segment of our society.

Today, however, this court can only decide what is before

it……It will decide on legal principles alone. This court
must not manage morality or temper theology. Its
charge is to examine what law there is and apply it to
the facts proven in this cause.

18
Ibid., at 326.

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90 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

This is a nonjury trial. At law, it is the jury that makes the

findings of fact. As in all chancery proceedings, the court
is the fact finder.”19 [Emphasis Supplied]

The Sterns met Mrs. Whitehead through an infertility clinic, when

Mrs. Stern was diagnosed with multiple sclerosis. The disease made her
incapable of carrying a pregnancy without having debilitating effects on
her health. Mrs. Whitehead was registered with the clinic and the Sterns
reached an agreement with her and appointed her as the surrogate by a
surrogate parenting agreement dated 6th February 1985.20 The seminal
fluid of Mr. Stern was introduced in Mrs. Whitehead’s womb through
artificial insemination where the latter was successfully impregnated after
nine attempts. This was celebrated by the Sterns by taking out the
Whiteheads for dinner.21

The terms of the contract specifically stated that Mrs. Whitehead

was to be appointed the surrogate whereby she accepted “….that her
obligation was to attempt conception by artificial insemination, upon
conception to carry the child to term, deliver and surrender the child to
Mr. Stern renouncing at that time all of her parental rights and
acknowledging that doing so would be in the child’s best interest. It was
also agreed that Mr. Stern’s name would appear on the child’s birth
[certificate as her father]”.22 Mrs. Stern was not a signatory to the contract
but the understanding was that she would adopt the baby after the child
was handed over to her husband, as was the practice with relation to

19
Ibid., at 334.
The responsibility before it was also emphasised in the following words:
“This is not the usual custody situation because there is no
shared parenting, no history of any relationship of
consequence between the natural parents. It is all about a
child with special needs because of her origin”. Supra note
3, 367.
20
Ibid., at 344.
21
Ibid.
22
Ibid., at 344.

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 THE RELEVANCE OF BABY MANJI YAMADA 91

babies born out of surrogacy at the time in New Jersey.

The contract further stated that “…. Mrs. Whitehead would

assume the risks of the pregnancy and child birth. She would submit to a
psychiatric evaluation for which Mr. Stern would pay. Mr. Stern had the
right to name the child. In the event of the death of Mr. Stern, the child
would be placed in the custody of Mr. Stern’s wife. Mrs. Whitehead
would not abort the child. In addition, she would undergo amniocentesis;
and if the child were found to have a genetic or congenital abnormality, it
would be aborted if Mr. Stern requested it. That in the event the child
possessed genetic or congenital abnormalities William Stern would assume
legal responsibility for the child once it was born”.23 In return, Mrs.
Whitehead was to be paid $10,000 and all the medical expenses and
dental expenses, on fulfilment of her contractual obligations. She promised
not to meet the Sterns but asked to be sent an annual picture of Baby
Melissa and her progress in a letter.24 Although Mr. Whitehead did not
initially consent to his wife’s attempts at surrogacy, he ultimately came
around and was fully aware of the negotiations with the Sterns, many
times participating in the discussions.25 He was however, not a signatory
to the contract.

Contrary to the contract, Mrs. Whitehead developed an

attachment to the child and insisted on keeping the baby. The Sterns
were forced to litigate when the baby was taken away from their
possession.

The best interest of the child was decided by looking into three
aspects:

1. Background and character of the parties, their past family

life and actions.

23
Ibid., at 345.
24
Ibid., at 344.
25
Ibid., at 345. The Court gave him the status of a ‘step-father.’ Ibid.,at 401.

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92 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

2. Their behaviour after the conception and the birth of the

child.

3. The behaviour of the parties during the trial.

Much emphasis was laid on the background of the parties where

the scales were tilted in favour of the Sterns. They had an upmarket,
educated and ‘private’ life and even their parents had had stable marriages.
On the other hand, the Whiteheads, only had a high school education,
and had a history of domestic turbulence, bad financial status, a brief
separation and alcohol abuse by Mr. Whitehead. The parenting skills of
the Whiteheads were put under intense scrutiny in light of their decisions
relating to their two children.26

The inability of Mrs. Whitehead to honour the surrogacy

agreement and detach herself from the baby also worked against her.
When Baby Melissa was born, the Whiteheads chose her name which
was not Melissa, the name given by the Sterns. This was contrary to the
agreement. They further went ahead and registered her birth, in that name,
stating themselves to be the parents. They also requested the Sterns not
to mention the factum of surrogacy to the hospital authorities.27 Although
she handed over Baby Melissa to the Sterns, she came to them the evening
of the same day and asked to keep her for some days. The Sterns were
distraught as Mrs. Whitehead showed suicidal tendencies. However, on
being handed the baby, she eloped with the baby, assisted by her husband,
to a different State and refused to comply with orders of the Court
demanding her appearance. This was a long drawn horror for the Sterns
lasting for about four months until the address of the Whiteheads was
identified in the state of Florida with the help of private detectives.28

26
217 N.J. Super 313, 341 (1987) states “…..Despite recommendations by the
professionals who comprise her son’s school district child study team, Mrs.
Whitehead requested that their recommendations be disregarded and that her
wishes be adopted. Dr. Metnick, the school psychologist, testified that in
seven years only ten parents, out of hundreds of students tested, have rejected
the child study team recommendations.”
27
Supra note 3, at 346.
28
Ibid., at 394, 350, 406.

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 THE RELEVANCE OF BABY MANJI YAMADA 93

During the trial, Mrs. Whitehead subjected the case to media

scrutiny by going to the press.29 She also allowed photographs of her
own eleven year old daughter to be published in magazines and
newspapers and also unnecessarily took her to the Court. She even made
false allegations against Mr. Stern of having sexually abused her daughter30 ,
charges which were later withdrawn.

In coming to its conclusions, the Court relied on the evidence

given by thirty eight witnesses out of which fifteen were expert witnesses.
The Court ruled that it was in the best interest of the child that she be
placed in the custody of the Sterns. Joint custody was deliberated upon
by the Court on the recommendation of one of the experts, a child
psychiatrist. However, it was denied as the Court found that “[t]he rancor
[between the parties] is too great”31 and thus not in the best interest of
the child as “[the] court doubts that they can isolate their personal animosity
and ‘all of a sudden’ [to] cooperate for the child’s benefit”.32

The Court also found that there was a breach of contract by

Mrs. Whitehead on two counts; by failing to surrender the child and by
refusing to relinquish her parental rights to the child33 . The best interest of
the child was also an issue in determining whether specific performance
of the contract should be ordered. This was decided in favour of the
Sterns.34 The decision of the Court dealing with surrogacy contract will
be dealt with in detail later in section V of this paper.

The claim to the grandparental rights of the parents of Mrs.

Whitehead, Catherine and Joseph Messer, was examined under the
provisions of New Jersey Statutes Annotated 9:2-7.1.35 This allows certain

29
Ibid., at 369, 392-393, 397.
30
Ibid., at 351, 360, 368, 392,393.
31
Ibid., at 358.
32
Ibid., at 358-359.
33
Ibid., at 388-389.
34
Ibid., at 390-399.
35
As amended in 1972. The Statute deals with the visitation rights for the
grandparents or siblings.

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94 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

rights to grandparents to preserve the “important relationships”36 that might

have been developed with a minor child in case of death of parents, divorce
or living separate or apart inspite of Court orders and agreements.37 The
Court held that for such an order to be passed,38 there must be a
disintegration or dysfunction in the family unit of the child in order to allow
the visitation rights; a unit which itself was missing in this case. Also, in
exercise of its equity jurisdiction, the Court found that certain conduct of
the grandparents showed that it would be against the best interest of the
child to allow them visitation rights. The complete disinterest of the
grandparents towards the surrogacy contract , their inability to act contrary
when their daughter, Mrs. Whitehead, eloped with the baby in violation
of the Court order, and their delayed involvement in the case, i.e. at the
time of the trial were some factors taken into consideration by the Court.39
This decision of the Court was enhanced by its refusal to allow the custodial
rights to Mrs. Whitehead and the order for specific performance of the
contract.40

The Whiteheads made an application for appeal against the

above decision of the Superior Court of New Jersey before the Supreme
Court of New Jersey, along with an application for grant of custody; the

36
Ibid., at 404.
37
Ibid., at 403.
38
Ibid., at 404-408.
39
“This court finds these two people to be the genealogical maternal grandparents
of Melissa who, at first view, seem to have been somewhat casual and aloof
about their daughter’s extraordinary agreement. Their emphasis seems to have
changed with the advent of this litigation”. 217 N.J. Super. 313, 403 (1987)
Also:
“It is necessary at all times, in using any measure for Melissa, to note with
emphasis and concern that she is a special child-at risk-because of her origin
and the extraordinary publicity attendant to the trial of this case. Melissa will
need protection at all times whether it be from inappropriate or inadvertent
remarks made by family, friends or strangers or from an intrusion into her
privacy. This protection will require a superior sense of responsibility and
obligation. It requires placing the welfare of the child paramount to one’s self
or one’s children. Do the Messers measure up to such stringent standards?”
217 N.J. Super 313, 405 (1987)
40
Supra note 3, at 408.

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 THE RELEVANCE OF BABY MANJI YAMADA 95

appeal was allowed but the custody was not granted.41 The Supreme
Court affirmed the decision of the Superior Court in part while reversing
the decision with respect to the validity of the surrogacy contract and
remanded the case back to the Superior Court of New Jersey.42 The
custody of the child was allowed to be retained by Mr. Stern accepting
the decision of the lower Court and the ‘best interest of the child’
argument.43 However, Mrs. Whitehead was given visitation rights in
recognition of her entitlement as the natural mother, consequently
terminating the adoption rights of Mrs. Stern.44 The case was remanded
back to the Superior Court for the parties to work out the terms of the
visitation rights by the parties.45

The other important argument raised in Baby Melissa’s case,

before the Supreme Court of New Jersey, related to the constitutionally
protected rights of the parties. Mrs. Whitehead contended that the order
of the Superior Court violated her constitutionally protected right to the
companionship of her child. The Sterns on the other hand claimed “……a
constitutional right to privacy, which includes the right of procreation,
[also includes] the right of consenting adults to deal with matters of
reproduction as they see fit.”46

Mrs. Whitehead’s claim of the right to companionship of her

child was dropped as her right to companionship has been restored by
the part of the order allowing her the visitation rights. As far as Mr. Stern
is concerned, the Court refused to give an all encompassing definition to
his claim to the right to procreation simply because, it reasoned that giving

41
In the Matter of BABY M., a Pseudonym for an Actual Person, Supreme Court
of New Jersey, 107 N.J. 49, vide order dated 21.11.1986.
42
In the Matter of BABY M., a Pseudonym for an Actual Person, Supreme Court
of New Jersey, 109 N.J. 396, (1987).
43
Supra note 40, at 454.
The Whiteheads divorced during the trial proceedings and Mrs. Whitehead
remarried but both were considered as the appellants for the Court proceedings.
109 N.J. 396, 412 (1987), Supra note 1.
44
Ibid,, at 463- 468.
45
Ibid,, at 468-469.
46
Ibid, at 420

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96 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

him the right would be to refuse Mrs. Whitehead the same right. It held:

“……The right to procreate very simply is the right to

have natural children, whether through sexual intercourse
or artificial insemination. It is no more than that…...

Mr. Stern has not been deprived of that right. We conclude

that the right of procreation is best understood and
protected if confined to its essentials, and that when
dealing with rights concerning the resulting child, different
interests come into play. There is nothing in our culture or
society that even begins to suggest a fundamental right
on the part of the father to the custody of the child as part
of his right to procreate when opposed by the claim of
the mother to the same child…..”47

IV. THE TALE OF BABY MANJI

It has been almost three years since the Supreme Court decided
Baby Manji Yamada vs. Union of India (UOI) and Another.48 The
relevance of this case lies in it being not only the first decision relating to
surrogacy made by the Apex Court but also in bringing to light the absence
of regulation of the existing surrogacy industry in India. Thus, it can be said
to be the direct precursor of the newly enacted Assisted Reproductive
Technologies (Regulation of) Bill, 201049 which followed the 2008 Draft
Bill.50 The case is also relevant because it was decided under a presumption
of legality of surrogacy agreements and motherhood, with the Court merely
commenting on the status of such agreements.At the time, the Guidelines
regulating surrogacy had been laid down by the Indian Council of Medical
Research in 2006 but did not find mention in the judgment of the Court to
support its presumption of legality of surrogacy in India.

47
Ibid, at 448-449 (1988)
48
(2008) 13 SCC 518
49
Available in: http://www.icmr.nic.in/guide/ART%20REGULATION
%20Draft%20Bill1.pdf (Last visited on May 22, 2011).
50
Available at http://www.prsindia.org/uploads/media/vikas_doc/docs/
1241500084~~DraftARTBill.pdf (Last visted on May 31, 2011)

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 THE RELEVANCE OF BABY MANJI YAMADA 97

The case developed in the backdrop of the Gujarat riots of

2008. Baby Manji was born on the 25th July, 2008, to Japanese biological
parents who came to Anand in the year 2007, looking for surrogates.
The egg extracted from her biological mother, Dr. Ikufumi Yamada was
fertilised by her father, Dr. Yuki Yamada’s sperm. The fertilised egg was
then implanted in the womb of an Indian surrogate mother. Her biological
parents soon developed marital problems and her mother left for Japan
before her birth. They were divorced by the time Baby Manji was born.
It is not clear from the judgment if the surrogacy was responsible for the
‘matrimonial discord’.51
51
Supra note 46, Para 4
There are a lot of contradictory reports regarding the parentage of Baby Manji.
Some state that she was born to an anonymous Indian donor whose eggs were
fertilized by her biological father. The marital discord that developed between
the parents is considered to be a consequence of the wife of Dr. Yamada refusing
to bring up a baby which is not genetically related to her. However, this article
has relied on the facts stated in the judgment which has definitely ‘the’
precedence over newspaper and web articles.
See generally:
1.“Baby Mani’s wait may end soon”, dated August 8, 2008;
<www.dnaindia.com/india/report_baby-manji-wait-may-end-
soon_1182152> (Last visited on May 22, 2011)
2. Kari Points, “Institutions in crisis, Commercial Surrogacy and Fertility
Tourism in India- the case of Baby Manji”, The Kenan Institute For
Ethics at Duke University; <www.duke.edu/web/kenanethics/case
studies/Baby Manji.pdf> In this article, the author has written the facts
contrary to the Supreme Court judgment and this she has accredited to
“…nearly 100 articles in the newspapers …...surveyed:…..[the] survey
spanned mid-July 2008 to mid-May 2009.” She further writes: “I
ascertained the timeline of events and facts of the case from these
accounts. Although to the best of my knowledge what I have presented
here is an accurate representation of what happened, the articles often
providing conflicting details.” See footnote 1. ( Last visited on May 22,
2011)
3. “Baby Manji’s luck looks up, may get Japan visa”; August 15, 2008,
CNN-IBN; <www.ibnlive.in.com/news/baby-manjis-visa/71312-3.html>
(Last visited on May 22, 2011)
4. “SC extends custody of baby Manji granted to her grandmother”, August
28, 2008, THE TIMES OF INDIA. (Last accessed on May 22, 2011)
5. Amana Fontanella- Khan, “India, the rent-a-womb capital of the world”,

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98 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

The father too had to go back to Japan as his visa expired and
thus, she was under the care and supervision of her paternal grandmother
in the clinic in Anand. She was issued a birth certificate in the name of her
genetic father by the Municipality of Anand. According to the existing
laws, the birth certificate would entitle Mrs. Yamada to adopt the baby.
She was breastfed by an Indian lady but later had to be shifted to Rajasthan
due to the riots where she was placed under intensive care as she developed
complications due to an infection.

Subsequently, a Division Bench Habeas Corpus Writ Petition

was filed before the High Court of Rajasthan, Jaipur Bench, by a NGO,
M/s SATYA. It was filed against 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.

The writ petition challenged the legality of surrogacy and

criticised it as feeding an illegal industry in India and stressed the need for
the enactment of a law. Consequently, the Division Bench of the HC of
Rajasthan passed the writ ordering the production of the child before the
Court. This order was challenged by the grandmother on behalf of Baby
Manji in the Writ Petition before the Supreme Court in which the NGO,
M/s SATYA was the Respondent No. 3. The locus standi of the
Respondent No. 3 to file the Writ Petition before the High Court was
challenged and it was also argued that the Writ Petition was baseless as it
was not proved in whose illegal custody the child was.52 It was also
argued that the petition before the High Court was styled as a public
interest litigation there was no element of public interest involved”.53 The

S LATE, September 3, 2010, <www.asianwindow.com/tag/surrogate-

mothers/>
6. “Supreme Court to hear infacnt Manji’s case on Wednesday”, August
19, 2008, T HAINDIAN N EWS , <www.thaindian.com/newsportal/
uncategorised/supreme/..........wednesday_10086146.html> (Last
accessed on May 22, 2011)
52
Supra note 46, para 3.
53
Ibid.

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 THE RELEVANCE OF BABY MANJI YAMADA 99

Court set aside the order of the High Court and held that complaints
relating to the misuse of surrogacy and it being an illegal racket in India,
should be made before the Commission set up under the Commissions
For Protection of Child Rights Act, 2005. The court also stated that no
such complaint had been made with respect to Baby Manji, thus the
order requiring her production before the Court was not valid. An
additional prayer that the passport for the baby be granted and that the
grandmother’s visa be extended was allowed and directions to that effect
were given to the government.54

Later, Baby Manji was issued a Certificate of Identification

instead of a passport by the Regional Passport Authority, Rajasthan just
to facilitate her transit out of the Indian territory.55 This fact was highlighted
in the case of Jan Balaz v. Anand Municipality and Others, a decision
of the High Court of Gujarat which involved the question of nationality of
twins born to an Indian surrogate mother with the help of an unknown
Indian donor and the sperms of the father, Jan Balaz.56 The decision of
the High Court has been discussed at a later point in this paper.

V. THE COURTS ON SURROGACY AND SURROGACY CONTRACTS:

Much can be said about the difference in the manner in which

the judgments have been written and the reasoning used by the Courts in
dealing with this nascent issue. The Supreme Court of India, in a short
and hurried judgment, delegated the responsibility on the National
Commission Protection of Child Rights to decide on the legality of
surrogacy. On the other hand, the Superior Court and Supreme Court of
New Jersey, more aware of the repercussions of its decision, deliberated

54
The Court could have entered into the area of the rights of the grandparent
over a surrogate child as was done in the case of Baby M, 217 N.J. Super. 313.
However, this omission could be because she was representing the minor Baby
Manji and as happens in most cases filed before Indian Courts, the major “next
friend’s/ guardian’s” right to approach the Courts on behalf of the minor is
decided and accepted on the basis of blood relation. More so, in this case, the
relationship of Baby Manji and her grandmother was not a matter of dispute.
55
AIR 2010 Guj 21
56
Ibid, para 16

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100 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

upon surrogacy as a method of bearing progeny and the legality of

surrogacy agreements. Both Courts were aware that they were acting in
the absence of legislation.57

The issue regarding the unregulated surrogacy industry in India

was raised by M/s SATYA, Respondent No. 3 before the Supreme Court
in its counter affidavit; it was dismissed as being ‘not made in good faith’
and ‘not in public interest’ by the counsel for the Union of India.58 The
Court missed a chance to take a stand on such an important contemporary
issue. Neither did it go into the details of the locus standi of the Respondent
No. 3 nor into “whether bona fides [of the Petitioner alleging illegality in
the name of surrogacy] are involved or not”.59 Instead, it merely went
into discussing the different methods of surrogacy, “a well known method
of reproduction”60 which can be sought by infertile females,61 intending
parents or “single male or a male homosexual couple”.62 Curiously, the
court did not mention that the intended couple might also include an aspect
of male infertility.

Another major drawback in the judgment could be the failure

of the Court to undertake a detailed discussion of the surrogacy contract
as well as the facts of the case.63 It did write about the various forms of
surrogacy and as far as surrogacy in exchange for money is concerned, it
wrote:

57
The Baby Manji decision is a hurried decision which is a characteristic of most
of the judgments written by Pasayat, J. He has the record of writing the most
number of judgments in the Supreme Court, but which many a times suffer in
quality and some mistakes are ‘cut, copied and pasted’ in subsequent
judgments involving the same facts.
58
(2008) 13 SCC 518, 521, para 6
59
Ibid, para 7
60
Ibid, para 8, p. 523
61
Ibid, para 14, p. 523-524
62
Ibid, para 15, p. 524
63
“Ordinarily in Article 32 proceedings the Court does not enter into questions of
fact but it may do so if it finds it necessary in appropriate cases. [Citing (1991)
2 SCC 488: AIR 1991 SC 1070; 1994 SUPP (1) SCC 87: AIR 1993 SC 2491] , V. N.
SHUKLA, CONSTITUTION OF INDIA 320 (M.P. Singh ed., 11th Edition, Eastern Book
Company, 2010).

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 THE RELEVANCE OF BABY MANJI YAMADA 101

“ ‘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’.”64 [Emphasis
supplied]

That the surrogates could be ‘poor’ and surrogacy ‘is reaching

industry proportions’ in India due to ‘high international demand’ did not
seem to alarm the Court into action. Instead it delegated the task of
deciding on the legality of these surrogacy argeements to the Commission.
Also, the excerpt of the Court above does not mention the absence or a
need for a law to regulate surrogacy which is ‘reaching industry like
proportions’ in India.

However, it must also be appreciated that the Court was only

deciding on a Writ Petition which arose out of an interim order of the
High Court. The hurry to decide on the fate of an infant, stranded on a
foreign land, in the backdrop of the Gujarat riots could also be a factor
responsible for the nature in which the judgment was written.

Comparatively, the decisions of the Superior Court as well as

the Supreme Court of New Jersey in Baby Melissa’s case dealt with the
issue in greater detail. The issues were definitely more concrete before
the Courts but it is apparent that they used the opportunity to discuss the
legality of surrogacy contracts.

64
Supra note 56, para 13, p. 523.

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102 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

Apart from the best interest argument, the other main issues
raised related to the validity of surrogacy contracts. It was argued that
the surrogacy contract is invalid because65 :

1. “…..it conflicts with public policy since it guarantees that

the child will not have the nurturing of both natural parents-
presumably New Jersey’s goal for families.”

2. “…..it deprives the mother of her constitutional right to

the companionship of her child, and that it conflicts with
statutes concerning termination of parental rights and
adoption.”

Thus, “…..Mrs. Whitehead claim[ed] primary custody (with

visitation rights in Mr. Stern) both on a best interests basis (stressing the
“tender years” doctrine) as well as on the policy basis of discouraging
surrogacy contracts[;]….that even if custody would ordinarily go to Mr.
Stern, here it should be awarded to Mrs. Whitehead to deter future
surrogacy arrangements.”66

The Court concluded that the surrogacy contract was invalid in

whole on two grounds67 :

1. It conflicts with statutory provisions;

a) prohibiting the use of money in connection with

adoptions;68
65
Supra note 42.
66
Ibid.
67
Ibid., at 423.
68
N.J.S.A. 9:3-54a
N.J.S.A. 9:3-54 reads as follows[ extracted from 109 N.J. 396, 423 (1988), Footnote 4]:
a. No person, firm, partnership, corporation, association or agency shall make,
offer to make or assist or participate in any placement for adoption and in
connection therewith
(1) Pay, give or agree to give any money or any valuable consideration, or
assume or discharge any financial obligation; or
(2) Take, receive, accept or agree to accept any money or any valuable
consideration.

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 THE RELEVANCE OF BABY MANJI YAMADA 103

b) requiring proof of parental unfitness or

abandonment before termination of parental
rights is ordered or an adoption is granted;69

c) that make surrender of custody and consent to

adoption revocable in private placement
adoptions. This is a procedural requirement that
gives precedence to the right of the natural
mother to surrender her child voluntarily but
demand return if she changes her mind. The
surrogacy agreement between the Mr. Stern and
Mrs. Whitehead was absolute in its terms
regarding the relinquishment, “…giving her no
right to rescind”70 of the child and thus invalid.71

b. The prohibition of subsection a. shall not apply to the fees or services of any
approved agency in connection with a placement for adoption, nor shall such
prohibition apply to the payment or reimbursement of medical, hospital or
other similar expenses incurred in connection with the birth or any illness of
the child, or to the acceptance of such reimbursement by a parent of the child.
c. Any person, firm, partnership, corporation, association or agency violating
this section shall be guilty of a high misdemeanour.
69
N.J.S.A. 9:2-16,-17; N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23;
The conflict was also with the decision of the Supreme Court of New Jersey in
Sees v. Baber, supra, 74 N.J. 201, 377 A.2d 628, (1977). The Court in Baby M
observed:
“The surrogacy situation, of course, differs from the situation in Sees, in that
here there is no “adoptive couple,” but rather the natural father and the
stepmother, who is the would-be adoptive mother. This difference, however,
does not go to the basis of the Sees holding. In both cases, the determinative
aspect is the vulnerability of the natural mother who decides to surrender her
child in the absence of institutional safeguards.” 109 N.J. 396, 434 (1988),
Footnote 8.
70
Supra note 41, at 433: “Contractual surrender of parental rights is not provided
for in our statutes as now written. Indeed, in the Parentage Act, N.J.S.A. 9:17-
38 to -59, there is a specific provision invalidating any agreement “between an
alleged or presumed father and the mother of the child” to bar an action brought
for the purpose of determining paternity “[r]egardless of [the contract’s] terms.”
N.J.S.A. 9:17-45. Even a settlement agreement concerning parentage reached in
a judicially-mandated consent conference is not valid unless the proposed
settlement is approved beforehand by the court. N.J.S.A. 9:17-48c and d. There

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104 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

2. It conflicts with public policy as laid down by statue

and decisions of the Courts.

The Court observed:

“The surrogacy contract guarantees permanent separation

of the child from one of its natural parents. Our policy,
however, has long been that to the extent possible,
children should remain with and be brought up by both
of their natural parents…….

…..The whole purpose and effect of the surrogacy

contract was to give the father the exclusive right to the
child by destroying the rights of the mother…..72

….The surrogacy contract violates the policy of this State

that the rights of natural parents are equal concerning their
child, the father’s right no greater than the mother’s”.73

The Court noted that the adoption agency did have the report
of the psychological evaluation of Mrs. Whitehead which had stated that
she mentioned that she might have problems in giving up the child. But the
adoption agency was blinded by profit and thus did re-evaluation of her
psychological state and explain the implications of giving up her child to
her.74 The nature of the surrogacy also entailed that the mother’s consent
was not voluntary and was uninformed as the decision was prior to the
birth of the baby “…..and any decision after that, compelled by a pre-
existing contractual commitment, the threat of a lawsuit, and the inducement

is no doubt that a contractual provision purporting to constitute an irrevocable

agreement to surrender custody of a child for adoption is invalid”.
71
Ibid., at 434: “The provision in the surrogacy contract whereby the mother
irrevocably agrees to surrender custody of her child and to terminate her
parental rights conflicts with the settled interpretation of New Jersey statutory
law.”
72
Ibid., at 435.
73
Ibid., at 436.
74
Ibid., at 436-437.

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 THE RELEVANCE OF BABY MANJI YAMADA 105

of a $10,000 payment, is less than totally voluntary. Her interests are of

little concern to those who controlled this transaction”.75

The surrogate contract also was held to not take the best interest
of the child into consideration:

“Worst of all, however, is the contract’s total

disregard of the best interests of the child. There is not
the slightest suggestion that any inquiry will be made at
any time to determine the fitness of the Sterns as
custodial parents, of Mrs. Stern as an adoptive parent,
their superiority to Mrs. Whitehead, or the effect on
the child of not living with her natural mother. This is
the sale of a child, or, at the very least, the sale of a
mother’s right to her child, the only mitigating factor
being that one of the purchasers is the father. Almost
every evil that prompted the prohibition on the payment
of money in connection with adoptions exists here”.76

Thus, the Court held that:

“..our present laws do not permit the surrogacy contract

used in this case. Nowhere, however, do we find any
legal prohibition against surrogacy when the surrogate
mother volunteers, without any payment, to act as a
surrogate and is given the right to change her mind and to
assert her parental rights. Moreover, the Legislature
remains free to deal with this most sensitive issue as it
sees fit, subject only to constitutional constraints.”77

The Court did go into the concerns regarding the exploitation

of women from poor backgrounds but did not deliberate much on this
point as “… it is unlikely that surrogate mothers will be as proportionately
numerous among those women in the top twenty percent income bracket

75
Ibid., at 437.
76
Ibid., at 437-438.
77
Ibid., at 469.

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106 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

as among those in the bottom twenty percent.”78

However, it stated that:

“Whatever idealism may have motivated any of the

participants, the profit motive predominates, permeates,
and ultimately governs the transaction”.79

This was held, to directly affect the child when it would grow
up to know that “…someone…gave birth to her only to obtain money”.80
Though altruism could be the reason for women agreeing to become
surrogates, but it might not always be so as is seen in India where women
become surrogates mainly for money. These reservations were highlighted
by the Supreme Court of New Jersey in the following words:

“……...[T]he potential degradation of some women that

may result from this arrangement. In many cases, of course,
surrogacy may bring satisfaction, not only to the infertile
couple, but to the surrogate mother herself. The fact,
however, that many women may not perceive surrogacy
negatively but rather see it as an opportunity does not
diminish its potential for devastation to other women.

In sum, the harmful consequences of this surrogacy

arrangement appear to us all too palpable.”81

The Supreme Court of India in exercise of its Writ jurisdiction

understandably could not go much into the facts and issues involved.
However, unlike the Superior Court or the Supreme Court of New Jersey,
which mentioned its intention to exercise the parens patriae jurisdiction
in the judgment, the Supreme Court of India did exercise its parens patriae
jurisdiction without mentioning it in the judgment. The Supreme Court of
India in many cases has held thatcourts can exercise their parens patriae
jurisdiction in spite of the existence of special statutes that govern the
78
Ibid., at 440.
79
Ibid., at 438.
80
Ibid., at 441.
81
Ibid., at 443.

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 THE RELEVANCE OF BABY MANJI YAMADA 107

rights of parents and guardians.82 Thus, in extension of this jurisdiction,

the Court ordered that the Central Government expedite the processing
of the passports of Baby Manji to facilitate her departure for Japan. 83

VI. CONCLUSION

The biggest impact of the Baby Manji decision has been that it
spurred the government of India to enact a law regulating surrogacy. In
August 2009, the Law Commission of Indian delivered the Report No.
228, titled “Need for Legislation to Regulate Assisted Reproductive
Technology Clinics As Well As Rights and Obligations of Parties to a
Surrogacy.” The Report stated that:

“The legal issues related with surrogacy are very complex

and need to be addressed by a comprehensive legislation.
Surrogacy involves conflict of various interests and has
inscrutable impact on the primary unit of society viz. family.
Non-intervention of law in this knotty issue will not be
proper at a time when law is to act as ardent defender of
human liberty and an instrument of distribution of positive
entitlements. At the same time, prohibition on vague moral
grounds without a proper assessment of social ends and
purposes which surrogacy can serve would be irrational.
Active legislative intervention is required to facilitate
correct uses of the new technology i.e. ART and relinquish
the cocooned approach to legalization of surrogacy
adopted hitherto. The need of the hour is to adopt a
pragmatic approach by legalizing altruistic surrogacy
arrangements and prohibit commercial ones.”84

The Report also submitted a Draft Assisted Reproductive

82
See, Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr, AIR
1958 SC 1042; Charan Lal Sahu vs. Union of India, (1990) 1 SCC 613; Nil Ratan
Kundu and Anr. v. Abhijit Kundu, (2008) 9 SCC 413; Gaurav Nagpal vs. Sumedha
Nagpal, (2009) 1 SCC 42;
83
Supra note 56, paras 16, 17.
84
The Draft of the Bill, 2010 at Para 4, p. 6.

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108 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

Technology (Regulation) Bill, 2008.85 This was later replaced by the Draft
Assisted Reproductive Technologies (Regulation) Bill, 2010.86

The Bill mainly aims to regulate the already thriving surrogacy

industry in India, which the Law Commission Report referred to as a ‘pot
of gold’87 while noting that the infertility clinics have managed to reach
the end of the rainbow.

The highlights of the Bill are as follows:

1. Constitution of authorities to regulate assisted reproductive

technology by framing policies and guidelines. These
authorities are also to receive any complaints relating to
surrogacy. The Bill stipulates the establishment of Advisory
Boards at the state and national level. The proceedings
before these boards are to be considered as judicial
proceedings.

2. The assisted reproductive clinics are to be regulated by

the Advisory Boards and their registration and
accreditation is to be mandatorily sought before the
Registration Authority. This entails that these clinics will
function under heavy regulation.

3. It details the rights of the patients (persons, who seek the

help of assisted reproductive technology; who can be
such ‘patients’ has also been dealt with), gamete donors,
surrogates and children.

4. It criminalises advertisements relating to pre-natal sex

determination.

5. A draft of a surrogacy agreement has also been given in

the Schedule to the Draft Rules.88
85
Supra note 48.
86
Supra note 47.
87
Supra note 10.
88
Form J, The Draft Assisted Reproductive Technologies (Regulation) Rules- 2010.

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 THE RELEVANCE OF BABY MANJI YAMADA 109

The immediate effect of the Baby Manji case in India was the
impending legislative activity.

On the other hand, the impact of Baby Melissa’s case in New

Jersey is that surrogacy contracts are void and payment of money for
surrogacy is ‘perhaps’ criminal.89 The judgment also states that a woman
could ‘volunteer’ to become a surrogate but on the condition that she is
given the right to assert her parental rights.90

Since Baby Melissa’s case involved a contract for traditional

surrogacy, this type is completely barred by the decision of the Court. By
‘volunteer[ed]’ surrogacy, the Court could mean gestational surrogacy
through a surrogacy contract or gestational surrogacy for altruistic reasons.
Since a gestational contractual surrogacy could involve payment of money,
in case of breach of contract, the question of it being voidable could arise
putting the parties in a disadvantage. However, altruistic surrogacy would
not involve any dispute relating to payment, as it is unlikely that the
surrogate mother would raise questions relating to payments or parentage
as she has concerns other than money for entering into the surrogacy. In
all likelihood, intending parents would not go for a surrogacy arrangement
in New Jersey due to the grey nature of the law. They could opt for states
where surrogacy is legal, like Arkansas, New Hampshire, and Tennessee
where surrogacy contracts are enforceable.

The Court also added a clause that the Legislature is free to

deal with this sensitive issue within constitutional constraints. However,
the State of New Jersey has till now not enacted any law relating to the
regulation of surrogacy and thus the anomaly still exists.91

Similarly in India, inspite of the spur of legislative activity that

followed the decision of the Court in Baby Manji we are yet to see results
with the ART Bill still pending. The need for an urgent legislation in India

89
Supra note 40, at 409.
90
Ibid.
91
Visit the website of The American Surrogacy Center (TASC), www.surrogacy.com
for an overview of the laws relating to surrogacy in the various States of the
USA.

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110 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

was also highlighted by another case which was decided by the Gujarat
High Court after the judgment on Baby Manji.. On 11th November, 2009,
the High Court of Gujarat delivered a judgment in Jan Balaz v. Anand
Municipality and 6 Or..s92 An appeal against the case is pending final
disposal before the Supreme Court of India. This case is a presage of the
complications that may arise out of surrogacy agreements and highlights
the urgent need for a legislation to regulate these agreements.

The petition was filed before the High Court by Jan Balaz, the
father of twin boys born out of a surrogacy agreement. The babies were
conceived through the fertilisation of a donor egg with the genetic father,
as the intending mother was unable to produce eggs due to bad health.
The surrogate mother was Indian while the intending parents were German
nationals working in the United Kingdom.93 The donor too was an
unknown Indian female.94 The denial of a passport by the Regional
Passport Authority to the twins was challenged by the Petitioner on the
ground that the twins were Indian citizens by virtue of their birth in India
to an Indian surrogate mother and thus entitled to Indian citizenship under
Section 3 of The Citizenship Act, 1955. They also argued that since
surrogacy was not illegal in India, a surrogate mother was entitled to be
called a mother of a child for the purposes of obtaining a passport.95 The
Passport Authority on the other hand argued that ‘the central government
was yet to legalise surrogacy’ and thus the twins born to a German father
were to be considered as non-citizens.96 The Court stated that the egg
donor, although genetically related to the twins, could not be asked to
disclose her identity as she was entitled to her privacy under Article 21.97
The Court depended on the mother-child bond shared during the gestation
periodto give the surrogate the status of the natural mother rather than the
intending mother who is neither the genetic nor the natural mother. The
Court concluded that given both the gestational mother and the egg donor

92
Supra note 53
93
Ibid, paras 2, 3, 4
94
Ibid, para 9
95
Ibid, para 7
96
Ibid, para 6
97
Ibid, para 16

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 THE RELEVANCE OF BABY MANJI YAMADA 111

were Indian nationals it reinforced the stand that the twins were born to
an Indian national.98

Held:

“Egg donor is also reported to be an Indian woman, of

course her identity is not disclosed. Either way the mother
of the babies is an Indian national. Petitioner, it is true,
has not married Khristi Marthaben Immanuel, surrogate
mother of the children or the egg donor. Children are
born not out of a subsisting marriage. Even if the children
are described as illegitimate children, even then they are
born in this country to an Indian national and hence, they
are entitled to get Citizenship by birth as per Section
3(1)(c)(ii) of the Citizenship Act, 1955, since one of their
parent is an Indian citizen.”99

Thus, the Court held that they were Indian citizens and thus
entitled to the issuance of the passports.

Here, the Court mentioned the urgent need for a legislation.100

An appeal against this decision is pending final disposal before the
Supreme Court.

At the time of this decision, the Draft Assistant Reproductive

Technologies (Regulation of) Bill, 2008 had been introduced for
deliberations. However, the Draft Bill, 2010 which replaced it is yet to be
passed by the Parliament, leaving the area devoid of any legal regulation.

Surrogacy and its virtues are still hotly debated issues both in
the USA as well as India. Some see it as a form of exploitation of poor
Indian women. However, women themselves consider it an economical
opportunity, hence ensuring the continuation of this practice. On the other
hand, the intending parents who enter into surrogacy agreements need to

98
Ibid, para 16
99
Ibid, para 17
100
Ibid, para 21

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112 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 2 : Winter]

be protected as they invest a lot of money and emotions. From the Baby
Melissa case, we can conclude that surrogate mothers do gwt emotionally
attached to the child while carrying it for someone else. Although, it could
be argued that in gestational surrogacy, a mother cannot be attached to a
baby as she has no genetic link to her, the psychological effects of being
a surrogate mother still need to be studied. In addition, a certain bond is
established between mother and child even during such a short period of
carrying the child for nine months. Thus, the studies relating to the effects
of surrogacy on all parties, which is beyond the scope of this paper, would
be a worthwhile endeavour that can help parties that will in the future opt
for this unique method to create progeny.

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