2008 (9) TMI 1018 - SC - Indian Laws

Supreme Court ruling on surrogacy child custody, emphasizes legal procedures and child welfare

Baby Manji Yamada Versus Union of India & Anr.

The Supreme Court disposed of the writ petition regarding the custody of a child born through surrogacy, directing grievances to be addressed by the ... - Issues involved: The issues involved in this case include the custody of a child born through surrogacy, challenges to directions given by the Rajasthan High Court, questions regarding the legality and regulation of surrogacy in India, and the jurisdiction of the National Commission for Protection of Child Rights.Custody of Child Born Through Surrogacy: The petition raised questions regarding the custody of a child named Manji Yamada, born through surrogacy. The grandmother of the child filed the petition challenging directions given by the Rajasthan High Court. The High Court had issued directions related to the production and custody of the child, who was born to biological parents from Japan through a surrogate mother in Anand, Gujarat. The child was moved to Arya Hospital in Jaipur due to a law and order situation in Gujarat. The genetic father had to return to Japan, and a Birth Certificate was issued by the Municipality at Anand indicating the genetic father's name.Challenges to Surrogacy Laws: Respondent No. 3 raised concerns about the lack of laws governing surrogacy in India, alleging irregularities and a money-making racket in the surrogacy process. The respondent emphasized the need for stringent laws related to surrogacy and questioned the locus standi of another party to file a habeas corpus petition regarding the child's custody. The respondent's stand highlighted the need for proper regulation and enforcement of laws concerning surrogacy to prevent exploitation and ensure the well-being of children born through surrogacy.Role of National Commission for Protection of Child Rights: The judgment referenced the Commissions for Protection of Child Rights Act, 2005, which establishes the functions of the National Commission for Protection of Child Rights. Section 13 of the Act outlines various functions of the Commission, including examining safeguards for child rights, inquiring into violations of child rights, and recommending appropriate measures for the protection and welfare of children. The Act empowers the Commission to address issues related to children in need of special care and protection, including those involved in surrogacy arrangements.Surrogacy Methods and Legal Considerations: The judgment provided insights into different forms of surrogacy, such as traditional surrogacy where the surrogate is the genetic mother and gestational surrogacy where the surrogate carries an embryo not biologically related to her. It distinguished between altruistic surrogacy, where the surrogate receives no financial reward, and commercial surrogacy, where a gestational carrier is paid for carrying the child. The judgment highlighted the legal and ethical considerations surrounding surrogacy arrangements, especially in cases involving infertility or health issues preventing intended parents from carrying a pregnancy to term.Conclusion and Directions: The Supreme Court disposed of the writ petition, directing any grievances related to the child's custody to be addressed by the National Commission for Protection of Child Rights. The Court emphasized the importance of following legal procedures for travel permissions and visa extensions concerning the child and the grandmother. The judgment clarified that all pending proceedings in High Courts related to the matter would stand disposed of due to the Supreme Court's order, without any costs imposed on the parties involved.