BABY MANJI YAMADA V UNION OF INDIA AND ANOTHER – A CRITICAL ANALYSIS

(Submission of Assignment towards fulfilment for assessment of CA-III in the subject of

Family Law -I)

Submitted by: Submitted to:

DEVIKA SREEKUMAR, SECTION A (1501) MS. PREETI

BADOLA

VARSHA RAMAN, SECTION B (1599) FACULTY OF

LAW

SEMESTER VI
 National Law University, Jodhpur

(Winter Session: January – May. 2020)

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 TABLE OF CONTENTS

A. FACTS OF THE CASE..........................................................................................................3

B. ISSUES CONSIDERED IN THE CASE.....................................................................................3

C. JUDGMENT..........................................................................................................................4

D. ANALYSIS............................................................................................................................4

E. PRE-BABY MANJI SCENARIO.............................................................................................4

F. POST-BABY MANJI SCENARIO AND THE RECENT DEVELOPMENTS.................................5

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 A. Facts and Contentions of the Case
The case of Baby Manji Yamada v Union of India and Another 1 essentially strikes at the heart
of the Assisted Reproductive Technology Bill, 2008 and highlights the relevant loopholes
which creeped up with the facts and circumstances of this case. This judgment further led to
the enactment of the Assisted Reproductive Technologies (Regulation) Bill, 2010
[hereinafter referred to as the “ART Bill”], thereby being the precursor to granting legality to
surrogacy agreements.

In this case, the judgment passed by the division Bench at the Rajasthan High Court was
challenged and appealed for by the guardians of the baby Manji Yamada [hereinafter referred
to as “the baby”] at the Supreme Court. The parents of the baby had essentially entered into a
surrogacy agreement with the surrogate mother in the year 2007. Following the birth of the
child on July 25, 2008, the baby was transferred to another hospital in Jaipur to be breastfed.
Meanwhile, the genetic father, Dr. Ifukumi Yamada had returned to Japan on the expiration
of his visa.

This matter was brought to the High Court by an NGO, Satya [hereinafter referred to as “the
petitioners”] on the grounds that the said concept of commercial surrogacy due to the lack of
an efficient legal framework had perpetuated to be reduced to that of a mere money-making
racket. Further, this issue was considered because owing to a divorce between the parents of
the baby, there was no law or a framework which accorded the responsibility of the custody
of the child to either parent. The father of the baby wanted to take custody of the child, but
both the countries – India and Japan lacked the necessary legal framework which granted
recognition to him as the father of the baby. 2 The court ordered the presence of the child in
the Court as a response to the petition filed. This order of the Court was appealed at the
Supreme Court by the baby’s grandmother on the grounds that the said petition was baseless
as there was no proof for an “illegal custody” in which the baby was in. In furtherance to the
same, the locus standi of the NGO was also challenged as the “public interest litigation” filed
by them lacked a public interest.3

1
(2008) 13 SCC 518.
2
Seema Mohapatra, Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial
Surrogacy, 30 BERKELEY J. INT'L L. 412, 450 (2012).
3
Id at ¶3.

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 B. Issues considered in the case:
 Whether the petitioners had the requisite locus standi to file a Habeas Corpus petition at
the High Court?
 Whether the PIL filed by the petitioners had the requisite public interest?
 Whether Baby Yamada could be issued a certificate of identity so as to be moved to a
different country with her father?

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 C. Judgment

The matter was finally decided on the 29th

of September 2008 by a two-judge bench that
looked into the matter pertaining to Baby Manji Yamada and the legal scenario of surrogacy
in general in India. The petitioners made a very pertinent observation about the legal lacunae
around surrogacy in India and called for stringent laws regulating the same. However, instead
of indulging with this reasoning, the court deviated to place the onus on the National and
State Commissions enacted under the Commissions for Protection of Child Rights Act, 2005
which served to offer speedy trial for offences against children and children’s rights. The
judgment goes to refer to the relevant portion of the Act which focuses on the functions of the
Commission, to bring this under their ambit. It also makes a distinction between the different
forms of surrogacy practiced in India i.e., altruistic surrogacy, commercial surrogacy,
traditional surrogacy and gestational surrogacy. However, it does not go on to make any
guidelines about any of these forms but merely serves as a reiteration of a collection of
information about it. 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.

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 D. Analysis

Where the story of Baby Manji Yamada starts from is a situation in India which did not
provide for a legal framework on how to deal with and tackle the myriad issues in surrogacy.
To begin with, 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 assist 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.4

Now even though the judgment did not actively solve any of these issues, it can be said to be
the precursor of the Assisted Reproductive Technologies (Regulation of) Bill, 2010. 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.

The issue regarding the unregulated surrogacy industry in India was raised by M/s SATYA,
the petitioners 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.
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”.
Instead, it merely went into discussing the different methods of surrogacy, “a well-known
method of reproduction” which can be sought by infertile females, intending parents or

4
See SAMA Team, Assisted Reproductive Technologies: For whose Benefit? 44(18) ECO. & PL. WEEKLY 25
(2009).

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“single male or a male homosexual couple”. 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. It talked about
the different types like quoting a Wikipedia page but there was no engagement with the
blatant illegality happening under the garb of commercial surrogacy. 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 agreements to the Commission. 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. Also, another point that was
overlooked was the Court’s hesitation to enter into the area of the rights of the grandparent
over a surrogate child as was done in the case of Baby M5. 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.

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.

That said, the baby Manji Yamada case paved the way for futuristic developments in the field
of surrogacy in India and set straight various illegal practices followed till date.

5
217 N.J. Super. 313.

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 E. Pre-Baby Manji scenario

Before the case of Baby Manji, the fertility clinics were subjected to regulation by the 2006
Guidelines of the Indian Council of Bio-medical Research or commonly known as the ICMR
Guidelines which validated surrogacy contracts.

With each successful birth, the stamp on the legality of the whole process of surrogacy used
to be sanctioned in the absence of any State or Central legislation. Although the ICMR
Guidelines did exist, but there was no central or state body to ensure that these regulations
were followed strictly when it comes to surrogacy.6

Incidentally, financial considerations seemed to be the main reason and still continue to be
relevant for the surrogates to participate in these arrangements. The infertility clinics then,
used to 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 used to ensure that matters relating to breach of
contract, non-payment, exploitation and violation of human rights are swept under the carpet.
Moreover, the surrogate mothers generally involved are and used to be from poor households
and in desperate need of financial help to sustain themselves. This fact used to be exploited
by the middlemen who would promise these women a better life in return of their service to
act as surrogate mothers. Hence, there was felt a need for concrete legal framework to protect
the interests of the surrogate mothers and the children born through surrogacy.

6
Id at ¶4.

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 F. Post-Baby Manji scenario and the recent developments
With the passing of the judgment, the Law Commission was prompted to suo moto take up
the issue of surrogacy for research. The exercise culminated in its 228th Report submitted in
August 2009 where the Law Commission mooted the proposal for a revamped legislation to
regulate the process of surrogacy in India. This led to the enactment of the ART Bill, 2010 by
the Parliament which granted and provided validity to all commercial agreements facilitating
surrogacy. This primarily focused on the aspect of anonymity of the surrogate mothers along
with discouraging breastfeeding to reduce postpartum bonding and thereby forcingly
encouraging separation after birth.7 Although, the Surrogacy Regulation Bill, 2016,8 however,
inexplicably abandons these arguments, allowing the commissioning parents to bring up a
child born out of surrogacy in close proximity to the surrogate. This Bill was finally
introduced again and passed in the Lok Sabha in the year 2019, which strikes at the heart of
commercial surrogacy. The Statement of Object and Reasons of the said Bill target the evil of
commercial surrogacy by curbing all the unethical practices surrounding commercial
surrogacy including the exploitation of surrogate mothers. In doing so, the recommendation
of the Law Commission to ban commercial surrogacy has been implemented and, in this way,
the Bill of 2019 makes a departure from the Bills of 2008 and 2014 which permitted
commercial surrogacy. This also puts a ban on the ‘medical tourism’ that had emerged in
India, as foreign nationals are now prohibited from availing these facilities.

The only form of surrogacy which is permitted in consideration to the said Bill is ‘altruistic
surrogacy’, which requires the surrogate mother to be a ‘close relative’ of the couple and
restricting a woman’s participation in the surrogacy process as once in a lifetime measure.
This measure tries to bring India at par with UK and Canada, who also prohibit commercial
surrogacy. Although, the Bill still seems to be regressive as it provides only for heterosexual
couples to adopt the method of surrogacy. There is a clear exclusion of homosexuals, single
parents and live-in couples to opt in for this method. This remains to be a regressive
provision considering the fact that homosexual couples and live-in couples have received a
‘legitimacy’ in the eyes of the law, lately. In furtherance to the same, single parents are

7
The Assisted Reproductive Technologies (Regulation) Bill, 2010. Ministry of Health and Family Welfare.
Indian Council of Medical Research. Available from: //icmr.nic.in/guide/ART%20REGULATION%20D raft
%20Bill1.pdf [accessed 19 March 2020].
8
The Surrogacy Regulation Bill, 2019, available at https://www.prsindia.org/billtrack/surrogacy-regulation-bill-
2019.

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allowed to adopt a child at their choice, excluding them from opting in for surrogacy, does
not stand through the progressive mentality prevalent in India today.

But, with the most recent development of the surrogacy law in India, which was after the
committee recommendations released in February, 2020, the air-tight definition for a
surrogate mother has been extended to a ‘willing woman’ from that of a close relative. There
is also a recommendation to exclude widowed women and divorcees from the excluded list
and grant them legality to proceed with surrogacy. Although, this, in our opinion does not
make the bill any less regressive as there exists an exclusion on the basis of sex, which does
not suffice the reasonable classification as needed.

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