BABY MANJI YAMADA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 32 of the Constitution of India, 1950 (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 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, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s. SATYA wherein the Union of India through 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. There is no dispute about Baby Manji Yamada having been given birth 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 25th July, 2008. On 3rd August, 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. Ifukumi 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.

(3.) Stand of respondent No. 3 was that there is no law governing surrogation in India and in the name of surrogation 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 No. 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. Learned counsel for respondent No. 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.