2008 Supreme(SC) 1449

2008(7) Supreme 287
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Baby Manji Yamada — Appellant
versus
Union of India & Anr. — Respondents
Writ Petition (C) Np. 369 of 2008
Decided on : 29-09-08

IMPORTANT POINT
Surrogacy is a method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.

Headnote:Constitution of India, 1950 – Article 32 – Custody of child – Habeas corpus petition by respondent 3 M/s. SATYA, an NG0 relating to production/custody of a child born by a surrogate mother – Stand of respondent 3 was that there was no law governing surrogation in India and in the name of surrogation lot of irregularities were being committed – According to it, in the name of surrogacy a money making racket was being perpetuated – It was also stand of said respondent that Union of India should enforce stringent laws relating to surrogacy – Writ petition by writ petitioner claiming herself to be grandmother of child challenging certain directions given by Division Bench of High Court relating to production/custody of a child on plea that respondent3 had no locus standi to file Habeas corpus petition – No dispute about Baby “M” having been given birth by a surrogate mother – No dispute that biological parents came to India in 2007 and had chosen a surrogate mother in Gujarat and a surrogacy agreement was entered into between biological father and biological mother on one side and surrogate mother on the other side – The child was born on 25th July, 2008 and she was being provided with much needed care including being breastfed by a woman – Held Since Commissions For Protection of Child Rights Act, 2005 had been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto – Instantly, if any action was to be taken that had to be taken by the Commission – Evidence on record showed that till now no complaint had been made by anybody relating to the child, the petitioner in this Court – Writ petition disposed of with a direction that if any person has any grievance, the same could be ventilated before the Commission constituted under the Act. (Paras 13 to 18)

        Words and Phrases – “Surrogacy” – Meaning of – Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party – She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an Embryo – In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them. (Para 5)

       Facts of the Case :

        A Habeas corpus petition was filed herein in the instant case by respondent 3 M/s. SATYA, an NG0 relating to production/custody of a child born by a surrogate mother . Stand of respondent 3 was that there was no law governing surrogation in India and in the name of surrogation lot of irregularities were being committed. Writ petitioner claiming herself to be grandmother of child has challenged certain directions given by Division Bench of High Court relating to production/custody of a child on plea that respondent3 had no locus standi to file Habeas corpus petition by present petition.

       Findings of the Court :

        Since Commissions For Protection of Child Rights Act, 2005 had been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto .Hence , if any action was to be taken that had to be taken by the Commission. Evidence on record showed that till now no complaint had been made by anybody relating to the child, the petitioner in this Court. Writ petition disposed of with a direction that if any person has any grievance, the same could be ventilated before the Commission constituted under the Act.

       Result : Writ petition disposed of.