‘A Womb of one’s own- Privacy and

reproductive right’- Need for Legislation

Case Name- Baby Manji Yamada v/s Union of India

Citation- 2008(13) SCC 518

Decided on- 29th September,2008

Bench- Arijit Pasayat, Mukundakam Sharma

Petitioner - Baby Manji Yamada

Respondents- Union of India & Anr.

Judgement Delivered By - Hon’ble Justice Dr. Arijit Pasayat

Facts –

The child's grandmother Manji Yamada. Emiko Yamada, claimed custody of a child born to a
non-Indian mother. It is said that blood parents Drs. Yuki Yamada and Drs. Ikufumi Yamada
came to India in 2007 and had chosen a mother to take over in Anand, Gujarat. A breeding
agreement is made between the biological father and the biological mother on the one hand and
the married mother on the other. Later, some marital discord arose. The baby was born on July
25th, 2008. In August, 2008 the baby was transferred to Arya Hospital in Jaipur in accordance
with the law and order in Gujarat. The baby was given much-needed care, including
breastfeeding. The applicant claims that the genetic father of Dr Ifukumi Yamada had to return to
Japan due to the expiry of his visa. It also emerged that the Anand Municipality has issued a
Birth Certificate showing the name of the genetic father.

The applicant's grandmother said she had the child and the habeas corpus application for the
same purpose. Although the application before the Rajasthan Supreme Court was called the
"Public Interest Case" but no public interest factor was involved. An educated attorney general
submitted that the application before the Supreme Court was not in good faith and was not in the
public interest.

Questions Involved –

This Application for Writing was submitted by M / s. SATYA-NGO, before the Supreme Court
of Rajasthan against the child's grandmother, the Director-General of Police, the Government of
Rajasthan, the Superintendent of Police Jaipur City (East) and the Indian Union. It is requested
that (a) there is no law governing the adoption of children in India and (b) in the name of non-
compliance. According to it, (c) in the name of surrogacy the racker making money is run and
(d) the Union of India should apply strict rules related to surrogacy. It was actually challenged by
the instructions given to the Supreme Court of Rajasthan in this matter regarding the granting of
custody of a child to its grandmother.

The main question involved in this case was to question the statement of defendant No. 3-NGO
and whether bonafides are involved or not.

The current petition before the High Court was lodged with the child's grandmother regarding (1)
a long-distance travel permit in which the child is affected, including the issuance of a Passport
under the control of the Central Government; but no order has been issued in respect of that and
(2) that in respect of the extension of the visa of the child's grandmother requesting such order.
In this regard the Attorney General confirmed that if the full application is filed with the passport
office as required, it will be rejected within 4 weeks.

Decision-

Regarding the general issues raised by the NGO regarding surrogacy, the court discussed in
detail and found that:

1. Surrogacy is a well-known method of reproduction in which a woman consents to the

purpose of conception and gives birth to a child who will not raise her but give her to a
contract person. She may be the mother of the baby's genetics (the normal birth process)
or she may, as a pregnant woman, carry the pregnancy to the womb after implantation. In
 some cases surrogacy is the only available form for biological parents who wish to have a
biological child.

The word "surrogate", from the Latin "subrogare", means "appointed to replace". The
intended parent (s) an individual or couple who intend to raise a child after birth.

2. “In a traditional pregnancy” (also known as a straightforward method) a spouse becomes

pregnant with his or her own child, but the child became pregnant with the intention of
letting the child be raised by others; by his biological father and perhaps by his spouse or
partner, male or female. The baby may be conceived through artificial insemination using
fresh or frozen sperm infused with IUI (intrauterine insemination), or ICI (intra-cervical
insemination) performed at a fertility clinic.
3. "In Gestational Surrogacy" (also known as the Way of Handling) a pregnant woman
becomes pregnant through the transfer of an embryo with a child who is not her
biological mother. You may have made a commitment to the foster mother or father to
raise her, or to a parent who is not related to the child (e.g., because the child became
pregnant using an egg donation, viral donation or donation result. Embryo). A pregnant
mother may be called a carrier of pregnancy.

4. "Altruistic surrogacy" it is a state in which one who substitutes another finds there is no
financial reward for her pregnancy or abortion child (although usually all costs related to
pregnancy and births are paid for by the intended parents as treatment costs, maternity
clothes, and other related expenses).

5. "Commerce surrogacy" is a form of childbirth in which the pregnant carrier is paid to

carry the child to maturity and is often used by well-to-do infertile couples who cannot
afford the costs involved or people who are grateful and borrowed to fulfill their dream of
parenthood. This medical practice is legal in a number of countries including India where
due to advanced medical infrastructure, high international demand and fair access to the
poorest working class workers meet industry standards. Commercial surrogacy is
 sometimes referred to as emotionally abusive words that can irritate "rented wombs",
"foreign pregnancies" or "children's farms".

6. Intended parents may plan a pregnancy because the woman intends to have children in
such a way that she can carry them to the end. Examples include a woman who has had a
miscarriage, who has a hysterectomy, who is pregnant again or who has a healthy
condition that makes it dangerous to get pregnant. The intended female parent may also
be fertile and healthy, but she is unwilling to get pregnant.

7. Alternatively, the targeted parerit may be a single male couple or a homosexual male.

8. Relatives, friends, or strangers before. Many arrangements are made by agencies that
help to link the targeted parents with women who want to be independent in order to be
paid. Agencies often help to manage complex medical and legal issues involved.
Surrogacy arrangements can also be made independently. In the compensation categories
the amount earned by a person at birth varies greatly. nothing could cost more than $
30,000. Careful screening is necessary to confirm their health as the pregnant woman is
exposed to potential risks of childbirth ".

The Role of the Commission on the Protection of the Rights of the Child

The court also ruled that the applicants must go to the Commission established under the
Child Protection Act, 2005 which is fully authorized to deal with this type of question
concerning a child. The Commission will take action on this matter. She has the right to
lodge complaints and not to take notice of matters relating to, (1) the deprivation and
violation of children's rights,) non-compliance with the laws providing for the protection
and development of children, and (iii) non-compliance. of policy decisions, guidelines or
directives aimed at reducing hardship and ensuring the well-being of children and
providing assistance to such children, or dealing with issues that arise as a result of those
issues with the relevant authorities. In this case no complaint has been lodged with the
Commission. A complaint against a child may be lodged with a Commission established
under the Act.
As no complaint has been lodged with the Commission, the court instructed to lodge a
complaint with the Commission.
The court did not focus on whether the NGO had a stand in the case or not as the plaintiff
was arguing that it did not affect the community ', SATYA - the NGO has no right to
intervene in the case and ask. issuing a letter of babeas corpus With these guidelines the
application was rejected.

Principles set –
1. The medical procedure of surrogacy is legal in India.
2. All cases relating to the protection and care of children must brought before the
Commission on the Protection of the Rights of the Child.
3. The urgent need for the day is to legislate on the issue of 'surrogacy' in India. The
absence of law in it has created many problems including the sale of surrogacy or omb.
Therefore, this issue must be resolved by the Union of India with full approval as well a
law capable of it.
4. It may be taken from this judgment that 'acquisition agreements and acquisition
agreements are legal in India.
5. The biological father is considered the legal parent of the child under Indian law due to
the 'adoption agreement' used between the parties involved - the grantor of the consent
and the surrogate mother. But the father of the child will be considered the 'legal parent'
of the child.
6. Contracts for the acquisition of legal contracts in terms of section 10 of the Indian
Contract Act, 1832. The provisions of this Act also apply to such contracts. In the event
of a breach of the terms and conditions, the other party has the right to seek legal
remedies' to apply the terms of the contract.
7. Under this court order, unmarried persons, homosexuals, divorced, infertile parents,
genetic parents and homosexuals may have a child from surrogacy.
After that –
The judgment shows that there is no law to regulate the adoption of children in India. On
the other hand, detailed laws have been drafted in other countries in this regard. The
Indian Law Commission re-submitted its report in August 2009 entitled 'The Need for a
Legal Reproductive Clinic Assistant Clinics Act and Partner Rights and Responsibilities
to Your Spouse'. It's too much a detailed and comprehensive report covering all related
aspects of acquisition including surrogacy contract, acquisition plans. The right to
privacy of the donor and the foster mother, the discovery of the selected sex and the cases
to be governed by the Medical Termination of Medical Terms of 1971, the name of the
father who authorizes the birth certificate etc. Those contracts will cover all the
requirements for a mother's pregnancy permit. the child, the agreement of her husband
and other family members the same, medical procedures for pregnancy, reimbursement
of all reasonable costs of full-time childbirth, willingness to give birth to a foster parent
(s), etc. But such an arrangement should not be used for commercial purposes. As a result
of the Assisted Reproductive Technology (Regulation) Bill, 2010 was introduced in
Parliament, but nothing has happened since then. There is therefore a significant lack of
such legislation in India.

Refer to Jan Balaz v Anand Municipality, AIR 2009 SC 21. Where the court has
emphasized the urgent need for the law to be dealt with thousands of problems related to
surrogacy.