Supreme Court seeks government’s views on surrogate birth (Lead)

August 20th, 2008 - 8:04 pm ICT by IANS  

New Delhi, Aug 20 (IANS) The Supreme Court Thursday sought the government’s stand on surrogacy in the absence of any law as it considered the case of 29-day-old Manji, who was born through surrogate pregnancy and whose Japanese parents have separated.A bench of Justice Arijit Pasayat and Justice M.K. Sharma also extended Manji’s custody to 74-year-old Japanese women Emiko Yamada, the mother of the baby’s biological father Ikufumi Yamada, till Sep 15.

The bench asked Solicitor General Goolam E. Vahanvati to be present during the next hearing Sep 15 to apprise the court of the government’s stand on various issues arising out of the baby’s birth in absence of the laws on surrogate pregnancy.

Manji, born in Gujarat’s Anand town, got entangled in a legal tussle as Indian laws prohibit the child’s divorced Japanese father from taking her custody.

The infant’s parents, Ikufumi Yamada, 45, and Yuki Yamada, 41, came to India a year ago and hired the services of a surrogate mother. The couple separated and then divorced during the pregnancy.

Soon after the baby was born July 25 and shifted to Ahmedabad, the city was hit by serial bombings. Manji was then moved to a hospital in Jaipur, where she is now being looked after.

The court also asked the voluntary organization Satya, which has opposed granting the infant’s custody to her biological relatives from Japan, to explain within two weeks its stake and interest in the matter.

As the bench took up the matter for hearing, Indira Jaising, counsel for Yamada, pleaded for its direction to the government to issue a passport to the baby.

The bench, however, refused her plea asking her to first approach the Japanese embassy to seek visa for the infant to enable her travel to Japan.

Opposing Manji’s custody to her Japanese biological relatives, advocate Abhinav Sharma, appearing for Satya, contended that in the absence of a surrogacy law in the country, no one could claim to be the baby’s legitimate parent.

He sought to impress upon the court that the child has been abandoned by her Japanese biological father and the surrogate Indian mother as neither of them are seeking her custody.

The baby’s custody instead is being sought by a Japanese woman, who says she is the mother of her biological father, said Sharma.

As the court observed that the baby was not an abandoned one as her grandmother was seeking her custody, Sharma contended that the lawsuit filed for the custody mentions the baby’s name as petitioner.

He added that the title of the lawsuit does not even mention the name of the baby’s father, in the absence of which the lawsuits are generally liable to be dismissed.

As advocate Sharma contended that in the absence of a surrogacy law in the country, no one could claim to be the baby’s legitimate parent, the bench asked him which law prevents surrogate pregnancy.

At this the advocate asked: “But which law allows it?”

Quoting a western jurist, Sharma said if there would have been no punishment for rape, it does not mean rape would have been legal.

Sharma said that surrogate pregnancy is considered illegal in Japan itself, where the baby is sought to be taken.

The NGO is opposing the baby’s custody to her Japanese relatives contending it would open a floodgate for trafficking of the children born through surrogate pregnancy in India.

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