Published On: February 5th 2026
Authored By: Joy Mercy
Chettinad School of Law
ABSTRACT
The case of Baby Manji Yamada v. Union of India (2008) brought the necessity of legal regulation of commercial surrogacy in India to the forefront when a baby was born to a Japanese couple through surrogacy in India in 2008. In the present case, for example, a Japanese couple contracted one of the surrogacy clinics in Gujarat for its services. The child was conceived with the husband’s sperm and an anonymous egg donor, with an Indian woman serving as the surrogate. The couple divorced while the baby was still unborn and woman intended to be the mother did not want to assert rights to the baby. The intended father had some visa problems and the newborn was left with her paternal grandmother. An NGO had moved a PIL in the Rajasthan HC, questioning the custody and the child’s welfare and legality of surrogacy. The case went to the Supreme Court, which declined to rule on the legality of surrogacy but stressed the importance of respecting the child’s rights as established under child welfare laws. The Court allowed the grandmother to take possession of the child & emphasized on the need for a legislation on surrogacy. This case laid the groundwork for India’s conversation about surrogacy, inspiring larger legal and ethical debates and, after years of regulatory reforms, changes in the law. It explains both the complication and the human side.
Keywords: Commercial surrogacy, Childs welfare, Legislation, Custody, Legality of Surrogacy.
CASE DETAILS
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Baby Manji Yamada v. Union of India & Another |
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Writ Petition (Civil) No. 369 of 2008 |
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August 29, 2008 |
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Supreme Court of India |
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TwoJudge Bench |
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Dr. Justice Arijit Pasayat, Justice Mukundakam Sharma |
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(2008) 13 SCC 518; AIR 2009 SC 84 |
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Article 32, Constitution of India; Commissions for Protection of Child Rights Act, 2005 |
FACTS OF THE CASE
In 2007, for commercial surrogacy A Japanese couple, Dr. Yuki Yamada and Dr. Ikufumi Yamada, traveled to Anand, Gujarat to have a child through a surrogacy clinic. The surrogacy agreement had Dr. Ikufumi Yamada as the sperm provider for the embryo, an anonymous Indian woman as the egg donor and another Indian woman as the gestational surrogate.Marital discord developed between the couple during the pregnancy and they divorced in June 2008. The prospective mother, Dr. Yuki, disclaimed any legal or parental right in the fetus, because she had neither a biological nor legal relationship to it. When the baby, named Manji Yamada, was born on 25 July 2008, the child’s genetic father, Dr. Ikufumi, was in visa trouble and had to return to Japan shortly after the birth. Consequently, the newborn was cared for and taken into custody by the paternal grandmother, Ms. Emiko Yamada, who had come from Japan. A birth certificate was issued by the Anand Municipality, which named Dr. Ikufumi Yamada as the genetic father. Subsequently, as a result of law and order deterioration in Gujarat, Baby Manji was shifted to a hospital in Jaipur, Rajasthan, for infant care and security. In the meantime, a Jaipurbased NGO, M/s SATYA, has filed a habeas corpus writ petition (Division Bench, No. 7829/2008) in the Rajasthan High Court, questioning the legality of the surrogacy arrangement and disputing custody of the child. The High Court responded by directing production of the child. In answer to this, in the Supreme Court, Ms. Emiko Yamada filed a petition under Article 32 of the Constitution. She challenged the order of the High Court and the standing of the NGO. This series of events culminated in the first landmark Supreme Court ruling on surrogacy in India with the case underscoring the dire need for regulatory clarity and statutory safeguards in relation to surrogacy procedure in India.
LEGAL ISSUES RAISED
In the Supreme Court Ms. Emiko Yamada filed a petition under Article 32 of the Constitution, challenging the order of the High Court as well as the locus standi of the NGO
The case raised a host of complicated and far reaching legal questions:
- How would commercial surrogacy agreements be legal and enforceable in India in the absence of any statutory regulation?
- What are the principles for deciding custodial rights, citizenship and the identity of a surrogate child born to foreign nationals in India when the intended parents are separated or absent?
- Whether an NGO has the locus standi to file a PIL seeking the custody of a particular child, or does it erode individual parental and child rights?
- Can the existing child protection laws be applied to fill the gap, or should there be new and specialized legislation to address the distinctive issues arising from surrogate arrangements and the children born as a result?
PETITIONER/ APPELLANT’S ARGUMENTS
The petitioners, primarily the child’s paternal grandmother and her lawyer, did not hold back in their arguments against the NGO M/s. SATYA’s right to intervene in the matter by way of a habeas corpus petition or a public interest litigation (PIL). They contended that the petition was not public interest matter but a private family issue camouflaged as PIL. The child was well looked after by the grandmother, whose only concern was the child’s welfare, thus there was no unlawful detention or trafficking that could warrant the interference of the NGO. The grandmother stated that the visa extension for Ms. Yamada and the issuance of a passport for Baby Manji were urgent matters that needed to be done to ensure the child’s safe return to Japan and then reuniting with her paternal family.
The petitioner challenged the right of the third respondent (M/s Satya, an NGO) to petition the writ petition before the Rajasthan High Court, claiming that the organization did not have any standing or direct interest in the issue to warrant its participation.The petitioner also maintained that in the present case the custody of the child was being sought but there was no evidence available that could support either party’s claim of having the baby in their illegal or unlawful possession.
Besides, it was said that the High Court petition had been misrepresented as a Public Interest Litigation (PIL) while in reality, the dispute was purely private and did not in any way involve public interest or the infringement of a collective right.
The petitioner further asked the Supreme Court to step in so that the infant Baby Manji, who was caught in a legal and emotional turmoil, could be put under proper care and custody until the legal and diplomatic complications regarding the surrogacy arrangement were sorted out
Moreover, the petitioner pointed out the Intended Father, Mr. Yamada, had a rightful claim to the child as the baby was biologically connected to him through the surrogate mother hence, the Indian government along with other authorities should facilitate the necessary travel and custody documentation instead of causing delays or obstacles as they were doing at present.
RESPONDENT’S ARGUMENTS
In the case of Baby Manji Yamada, the lawyer for the Respondent pointed out that India s commercial surrogacy sector was plagued with the elders clashing, and the lack of clear regulation and transparency made it a field that was open for misuse and exploitation. According to them, the commercial surrogacy industry was mainly functioning outside the laws, thus enabling the bad agents and clinics to exploit the poor surrogate mothers. These women, who were often the most vulnerable and the least paid, were exposed to many risks like no proper medical care, being underpaid, being coerced, and not really understanding what they were getting into as no informed consent was given. Due to the lack of regulation, the commercial surrogacy was turned into a dirty moneymaking process clinics kept on making money without caring for the patient’s that is, the surrogate mothers basic needs and ethical and medical standards.
Furthermore, the Respondent stressed that this lack of transparency and the nonexistence of legal protection that was enforceable made the children born through surrogacy and their welfare vulnerable in India, which was uncertain citizenship and legal status, as the Baby Manji Yamada case has shown so tellingly. Besides, the industry created the conditions that made the child trafficking and illegal commercial dealings in human reproduction very much suspect as it went on not even trying to apply the ethical standards.
The Respondent mainly raised the issue of judicial intervention to bring out the systemic deficiencies and make the legislature pass comprehensive and severe laws mandatory. Such laws should encompass legal boundaries regarding surrogacy, guarantee accountability and protection to surrogate mothers, and child’s right and citizenship through surrogacy, and also confront exploitation and trafficking. The ultimate objective of such intervention was leaving no place for the surrogacy industry, human dignity being the main reason, and all parties’ rights, especially the weak women and children, being the focus.
This line of reasoning was a decisive factor in determining the legislative steps taken by India afterwards, resulting in the Surrogacy (Regulation) Act, 2021, which bans commercial surrogacy and sets up regulatory frameworks aimed at protecting the rights of surrogate mothers and children through altruistic surrogacy.
RELATED LEGAL PROVISIONS
- Article 32 of the Constitution of India
Article 32 allows the person whose rights have been violated to apply directly to the Supreme Court for redress. This provision is as if the Constitution itself said, “The Court is open to you no matter what.” In the case of Baby Manji Yamada, the law enabled the grandmother to approach the Supreme Court and complain about the custody orders of the Rajasthan High Court. It is a step forward in protecting the rights of the most vulnerable, especially children by giving them access to the highest court in matters that concern so much like personal liberty and legal protection under the law.
- Commissions for Protection of Child Rights Act, 2005
Through the Act, the National and State Commissions for Protection of Child Rights (NCPCR/SCPCR) were created and given the role of child rights advocates. Section 13 gives the Commission the power to:
- Check and evaluate existing legal measures protecting children’s rights,
- Suggest the best ways to carry out these laws,
- Look into child rights violations,
- Resolve problems of the poorest and weakest children,
- Act on its own to notice complaints or violations,
- Create consciousness and teach about children’s rights,
- Check places that hold children.
In the Baby Manji Yamada case, the Supreme Court spoke about this Commission as the right one to stay complaints regarding child welfare, especially when there existed no particular surrogacy laws in India. The Court ordered that any discontent related to the child could be taken up with the Commission thereby making it a prime institution for protecting the child until lawmaking on surrogacy is done in the proposed way.
- The Surrogacy (Regulation) Act, 2021 is a comprehensive law in India, which prohibits commercial surrogacy altogether and allows only altruistic surrogacy where the surrogate mother gets no financial compensation except for medical expenses and insurance coverage. Apart from heterosexual married Indian couples who have been married for five years and are childless due to medical reasons, no one can make use of surrogacy, i.e., single, divorced, widowed, foreign, and LGBTQ+ persons are all excluded. Surrogate mothers must be closely related, between 25 and 35 years old, married and have at least one child. The Act sets up national and statelevel regulatory authorities to oversee the operations of surrogacy clinics and practices to enforce ethical standards and safeguard the rights of the surrogate mother, the intended parents, and the child. Furthermore, it recognizes the intended parents as the legal parents of the child from birth and imposes severe penalties including imprisonment and fines to combat exploitation, child trafficking, and unethical practices in surrogacy.
JUDGEMENT
RATIO DECIDENDI
The Supreme Court in Baby Manji Yamada vs Union of India remarked that it was not determining the legality or illegality of commercial surrogacy in that case however, the main concern of the Court was the welfare and best interest of the child concerned. The Court reiterated that Baby Manji’s welfare was safeguarded under the Commissions for Protection of Child Rights Act, 2005, which gives a statutory framework for the protection of child rights in the scenario where there are no specific surrogacy laws.
In its ruling, the Court annulled the order of the Rajasthan High Court which had directed that the child be produced before the court, thus affirming the interim custody of the child with her paternal grandmother. The Court also ordered that the processing of the grandmother’s visa extension be fasttracked and that the child’s passport be issued by the authorities so that her repatriation to Japan could be done safely.
To a considerable extent, the Supreme Court highlighted the point that there was no law preventing surrogacy contracts hence, the surrogacy agreements could not be considered illegal necessarily in India at that time. Nevertheless, the ruling pointed out that there was an urgent need for legislative and policy measures to control this very practice that was rapidly developing. It accepted the difficult situations and ethical dilemmas that came with commercial surrogacy and asked for the lawmakers to establish clear, strict, and practical legal boundaries to cope with such matters as exploitation, surrogate mothers’ rights, parenthood, and the citizenship of kids born through surrogacy.
Such a monumental ruling not only revealed the wisdom of the court but also led to the passing of the Surrogacy (Regulation) Act of 2021. The Court ruled in favor of the one important principle that until allencompassing legal frameworks are set up, the welfare and rights of the child shall always be the Court’s first priority over the vague legality or the moral issues concerning the practice of surrogacy.
This principle of the Court, however, remains pivotal and continues to be referred to in surrogacy jurisprudence and related legislative drafting in India.
OBITER DICTA
The Hon’ble Supreme Court, during the course of its judgment in Baby Manji Yamada v. Union of India [(2008) 13 SCC 518], expressed in strong terms the need for surrogacy law in India, through the obiter remarks, by pointing out the complete legislative and policy vacuum that existed around the subject. The Court stressed that the need for comprehensive legislation to govern surrogacy agreements, particularly those with an international or commercial element, was made by the crossborder surrogacy cases in the courts.The Court recognizes the advancement of ART as a legal issue that has caused the moral, ethical, and legal dilemmas to become very complex quickly outpacing the law, which had not anticipated such rapid developments. The Court noted that the lack of an unambiguous regulatory framework not only made the adjudication of parental and custodial rights cumbersome but also made the welfare of surrogateborn children vulnerable to competing claims, bureaucratic delays, and uncertain diplomatic arrangements. Moreover, the Court suggested that it should be the National Commission for Protection of Child Rights (NCPCR) or other competent child welfare authorities set up under the Commissions for Protection of Child Rights Act, 2005 that would decide the cases of similar nature relating to the rights of children born through surrogacy till the appropriate legislation comes into force. This, according to the Court, would guarantee the principles of transparency, uniformity, and prioritization of the child’s best interests a principle that has to prevail over contractual or commercial considerations in all surrogacyrelated matters.The Bench did not only deliver a judgment on this particular case but also shared a great deal of wisdom regarding the policy, stating that if there were no clear laws regarding the matter at hand, then disputes over international surrogacy agreements would very easily lead to protracted crises of a diplomatic and humanitarian nature. Therefore, the Court directed the Union Government to draft or provide a legislative framework that would cover the rights and obligations of the parents intending to get the child, the surrogate mother and the child, the legality of commercial surrogacy, and the citizenship granting process to the surrogateborn children.
Such comments from the court were not part of the case’s main decision, nevertheless, they brought about future legal reforms quicker. They had a direct impact on the consequent events, among them the formulation of the Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill, which in the end, resulted in the Surrogacy (Regulation) Act, 2021.
CRITICAL ANALYSIS
The Baby Manji Yamada case not only marked a significant decision but also enforced selfexamination about surrogacy, reproductive rights, and child welfare in the Indian legal system. The Supreme Court decision showed that India, despite leading the world in medical tourism and reproductive techniques, had no proper legislative or ethical framework for surrogacy — especially in the case of commercial surrogacy across borders which involved complicated issues of identity, citizenship, and parentage. Thus, the case was like a mirror shedding light on the institutional weaknesses and policy inactivity that had let such practices go on without any check.
Looking at it from a jurisprudential perspective, the case split the commentators and scholars of law into two opposing factions. The first group, the advocates of restraint by the judiciary, maintained that the Supreme Court’s ruling was a good example of the separation of powers, as the judiciary did not go beyond policymaking in a field that was in such need of legislative clarity. The Court, in directing such matters to the National Commission for Protection of Child Rights (NCPCR), reaffirmed the principle that judicial activism should not supplant legislative wisdom, especially in areas where ethical and social concerns are sensitive.
On the other hand, judicial responsibility supporters represented by the second group, criticized the Court’s minimalistic intervention as an overly cautious move, claiming that the judiciary in absence of statutory regulation could have set forth guiding principles or interim measures to protect the interests of surrogate mothers and children. This criticism is based on the argument that judicial interpretation, especially under Article 32 of the Constitution, has been a major factor in gradually increasing human rights safeguards when the legislature was silent or inactive.
However, the Court’s utilitarian approach in Baby Manji Yamada exhibited a blended type of judicial prudence that not only prevented the child from being in a legal vacuum but also respected the area of legislative policymaking. The ruling did not preach or completely outlaw commercial surrogacy rather, it demanded regulated statutory intervention, admitting that fragmented judicial decisions could not be equivalent to thorough policy reform. In this manner, the Court acted in what scholars describe as “judicial humility in bioethics” by recognizing the changing character of reproductive technology and the necessity for multisectoral discussion before declaring legal standards.
The Court’s focus on the welfare of the child as the chief factor in making the decision brought about a humanitarian aspect to the ruling. By referring to the Commissions for Protection of Child Rights Act, 2005, it made sure that the case would not become merely a matter of contract or trade but would be about the child’s welfare. This transition from a conflict based on rights to a resolution based on welfare is an illustration of the constitution’s spirit essence which can be traced back to Article 39(f) of the Directive Principles of State Policy that states children should receive opportunities for healthy development and should be protected from exploitation. In addition, the decision provoked an everlasting national discussion on the issues of women’s bodies being treated as commodities, the use of poor people’s economic condition for making profits, and the ethical limits of parenthood in the context of a globalized reproductive industry. The Court by leaving the issue to legislative action indirectly led to the policy process which ended up with the Surrogacy (Regulation) Act, 2021 that prohibits commercial surrogacy and allows altruistic agreements only. Thus, the result of this case went beyond its own immediate facts it was the driving force behind India’s legislative awakening on reproductive technologies. The ruling in the Baby Manji Yamada case is basically a showcase of judicial philosophy where the three factors of constitutional morality, child welfare and legislative responsibility meet. It shows how courts can maintain justice not just through legal interpretation but also through acknowledging their own institutional limitations. The ruling reshaped the borders of judicial intervention in bioethical governance, underlining that despite the fact that science might be progressing at a great speed, law should still develop slowly and that way only the core values of dignity, equality and protection of the weak will be preserved.
CONCLUSION
The Baby Manji Yamada case has been an important marker in the legal debates concerning surrogacy, reproductive rights, and children’s welfare in India. It was an eyeopener to the very large unregulated areas of assisted reproduction technologies and international surrogacy, where mixing together of ethical, legal, social issues along with the desire for parenthood occurred. The Supreme Court’s careful approach, on the one hand, was a straightforward demonstration of the Court’s selfrestraint, while on the other hand, it pointed out a situation where the law was very much needed and not the courts. The Court’s action of referring the case to the National Commission for Protection of Child Rights (NCPCR) depicted the Court’s concern for the child as the primary motive, shielding the child for the time being without setting any doubtful standards in an unregulated field. This situation resulted in raising the awareness of the matter across the country and eventually led to legislative changes, ending with the Surrogacy (Regulation) Act, 2021, which prohibited drawing by money and permitted strict arrangements only for the sake of women’s dignity and children’s rights. In the end, the decision regarding Baby Manji Yamada stays a sociolegal turning point that changed India’s policy in the field of reproductive technologies, stressing the necessity for law to progress along with scientific advancements while keeping ethics, motherhood, and child welfare intact.
REFERENCES
Important Cases Referred
Baby M, 109 N.J. 396 (N.J. 1988) is cited as a comparative precedent in international discussion on surrogacy and parental rights.
Important Statutes Referred
- Constitution of India, Article 32
- Commissions for Protection of Child Rights Act, 2005
- Surrogacy (Regulation) Act, 2021 (for legislative context after this judgment)
