Dr. Arijit Pasayat, J.— This petition under Article 32 of the Constitution of India (hereinafter for short “the Constitution”) raises some important questions.
2. Essentially, challenge is to certain directions given by a Division Bench of the Rajasthan High Court relating to production/custody of a child, Manji Yamada. Emiko Yamada, claiming to be the grandmother of the child, has filed this petition. The writ petition before the Rajasthan High Court was filed by M/s Satya, stated to be an NGO, Opposite Party No. 3 in this petition.
3. The DB Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s Satya wherein the Union of India through the 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 were made the parties.
4. There is no dispute about Baby Manji Yamada having been given birth to by a surrogate mother. It is stated that the biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. It appears from some of the statements made that there were matrimonial discords between the biological parents. The child was born on 25-7-2008. On 3-8-2008 the child was moved to Arya Hospital in Jaipur following a law and order situation in Gujarat and she was being provided with much needed care including being breastfed by a woman. It is stated by the petitioner that the genetic father Dr. Ikufumi Yamada had to return to Japan due to expiration of his visa. It is also stated that the municipality at Anand has issued a birth certificate indicating the name of the genetic father.
5. Stand of Respondent 3 was that there is no law governing surrogation in India and in the name of surrogation a lot of irregularities are being committed. According to it, in the name of surrogacy a money-making racket is being perpetuated. It is also the stand of the said respondent that the Union of India should enforce stringent laws relating to surrogacy. The present petitioner has questioned the locus standi of Respondent 3 to file a habeas corpus petition. It is pointed out that though custody of the child was being asked for but there was not even an indication as to in whose alleged illegal custody the child was. It is stated that though the petition before the High Court was styled as a “public interest litigation” there was no element of public interest involved.
6. The learned counsel for Respondent 3 with reference to the counter-affidavit filed in this Court had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain statements made in the said counter-affidavit and has submitted that the petition before the High Court was not in good faith and was certainly not in public interest.
7. We need not go into the locus standi of Respondent 3 and/or whether bona fides are involved or not. It is to be noted that the Commissions for Protection of Child Rights Act, 2005 (hereinafter for short “the Act”) has been enacted for the constitution of a National Commission and the 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. Section 13 which appears in Chapter III of the Act is of considerable importance. The same reads as follows:
“13. Functions of Commission.—(1) The Commission shall perform all or any of the following functions, namely:
(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;
(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;
(e) look into the matters relating to children in need of special care and protection including children in distress, marginalised and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;
(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;
(g) undertake and promote research in the field of child rights;
(h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;
(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of matters relating to,—
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection and development of children;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children,
or take up the issues arising out of such matters with appropriate authorities; and
(k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions.
(2) The Commission shall not inquire into any matter which is pending before a State Commission or any other commission duly constituted under any law for the time being in force.”
8. 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.
9. The word “surrogate”, from Latin “subrogare”, means “appointed to act in the place of”. The intended parent(s) is the individual or couple who intends to rear the child after its birth.
10. In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic.
11. In gestational surrogacy (also known as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e.g because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.
12. Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).
13. 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”.
14. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a health condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.
15. Alternatively, the intended parent may be a single male or a male homosexual couple.
16. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.
17. In the present case, if any action is to be taken that has to be taken by the Commission. It has a right to inquire into complaints and even to take suo motu notice of matters relating to: (i) deprivation and violation of child rights, (ii) non-implementation of laws providing for protection and development of children, and (iii) non-compliance with policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with the appropriate authorities.
18. It appears that till now no complaint has been made by anybody relating to the child, the petitioner in this Court. We, therefore, dispose of this writ petition with a direction that if any person has any grievance, the same can be ventilated before the Commission constituted under the Act. It needs no emphasis that the Commission has to take into account various aspects necessary to be taken note of.
19. Another grievance of the petitioner is that the permission to travel so far as the child is concerned including issuance of a passport is under consideration of the Central Government; but no orders have been passed in that regard. The other prayer in the petition is with regard to an extension of the visa of the grandmother of the child requesting for such an order.
20. The learned Solicitor General, on instructions, stated that if a comprehensive application, as required under law, is filed within a week, the same shall be disposed of expeditiously and not later than four weeks from the date of receipt of such application. If the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be availed.
21. The writ petition is accordingly disposed of without any order as to costs. All proceedings pending in any High Court relating to the matter which we have dealt with in this petition shall stand disposed of because of this order.
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