CASES

The absence of codified laws and policies on surrogacy in India gives rise to some complicated
legal scenarios which is being thrown light upon through the following case laws:-

1. BABY LOUISE JOY BROWN CASE ( 1st IVF Baby)

In this case Lesley and John Brown had their first ever successful ‘test-tube’ baby ‘Louise Joy
Brown’ born on July 25, 1978 in Great Britain by two British doctors who performed this In-
Vitro Fertilization. They created history and eventually won Nobel Prize in 2010 for the
development of human IVF therapy. Mr. and Mrs. Brown spent nine years trying to conceive
before they were treated by the Bourn Hall clinic in Cambridgeshire as part of the work of
Patrick Steptoe and Robert Edwards, who are seen as the pioneers of IVF.

2. BABY DURGA ALIAS KANUPRIYA AGARWAL ( 1st IVF baby in India )

Dr. Subhash Mukhopadhyay created history when he became the first physician in India (and
second in the world after British physicians Patrick Steptoe and Robert Edwards) to
perform the In vitro fertilization resulting in a test tube baby “Durga” (Kanupriya Agarwal) on
October 3, 1978. India’s. However the noble work of Dr Mukhopadhyay was not recognized
unlike his British counterparts.

3. BABY MANJI Yamada v. Union Of India 29th Sept, 2008

Baby Manji, or ‘Baby M’, was born to a surrogate mother through invitro fertilization using a
Japanese man's sperm and an egg from an unknown donor at Anand in Gujarat on July 25. The
Hon’ble Supreme court of India gave the custody of the child to the genetic father. The court
held that the father was the genetic father and instructed the Government to issue passport to the
baby Manaji Yamada while upholding the validity of the surrogacy agreement.

4. JAN BALAZ vs. UOI AIR 2010 Guj 21

More recently in the matter of Jan Balaz v. Anand Municipality, a German couple entered into a
contract with a surrogate mother named Marthaben Immanuel Khrishti. Twin children were born.
The German couple was working in the United Kingdom and the children required Indian
passports to travel. Since their citizenship was being litigated in the courts the passport
authorities withheld the passports. Germany, the parent state of the German couple did not
recognize surrogacy. The Supreme Court denied the passports but granted an exit permit to the
children and the German authorities decided to give the couple an opportunity to adopt the
children and fight for their rights.

5. BABY DEV CASE

In this case through surrogacy two twins were born at the instance of an Australian couple.
However the Australian couple took back only one child i.e. baby girl amongst the twins and left
back the baby boy ‘Dev’ behind in India. The birth of Dev had been registered and the
commissioning parents allegedly gave him up in adoption to somebody known to them. The
documentary made by Ms. Aarti Betigeri reveals the sad plight of ‘Dev’ who could not be traced
so far.  In India, the rights of the child are not placed above the rights of parents; that too many
disparate bureaucratic arms allow cases, such as Dev’s, to fall between the cracks

6. BABY GAMMY CASE (2016) FLC 93-700

It is a controversial case which was set to rest by Justice Thackeray. In the present case it was
being alleged that David Farnell and his wife Wendy have abandoned the baby Gammy as the
baby was suffering Down Syndrome and took away his sister Pipah to Australia. Further it was
also alleged that they were trying to lay their hands on the unclaimed money deposited for by the
people of Thailand for baby Gammy. Justice Thackray held that “the Farnells did not abandon
Gammy, and had wanted to keep him. However, at some time during the pregnancy, it is clear
that Mrs Chanbua (surrogate mother) had fallen in love with the twins she was carrying and had
decided she was going to keep the boy.” Justice Thackray also made a remarkable observation
that “surrogate mothers are not baby-growing machines, or ‘gestational carriers’. They are
flesh and blood women who can develop bonds with their unborn children

7. Dan Goldberg Case 2010

Dan Goldberg’s case is a latest case on the legal tangles over the surrogacy that have occurred in
the last few years on surrogacy issues. In this case, the Jerusalem Judge prevented a Gay Israeli
restaurateur, form taking his twins Itai and Liron, born with the help of a surrogate mother in
Mumbai back to their home town. The news was startling as Israeli’s have successfully returned
home in the past with the children they had with the help of Indian surrogates, including the Gay
couples. In this case the Jerusalem family court judge Phillip Marcus refused to allow Paternity
Test which the couples are required to do for proving their parenthood and to acquire the
citizenship for their children. The case was so crucial that the Hon’ble Prime Minister of Israel
Mr. Benjamin Netanyahu had to intervene as protests broke out by Left Wing and the gay
community. On an appeal being filed against the decision of family court, the Jerusalem District
Court decided that the family court had the jurisdiction to decide the case and be the one to rule
in the case. Following which the district court held that holding the test is in the best interest of
the twins. It was a grand victory for the gay couple as the twins were issued passport and were
allowed to return with them after struggling in Mumbai for around three months.

8. K S Puttaswamy v Union of India 24 August 2017

On 24 August, 2017, a nine-judge bench of the Supreme Court of India (hereafter SC or Court)
unanimously affirmed privacy as a fundamental right under the Constitution (Justice K S
Puttaswamy v Union of India 2012a). The bench recognised privacy as an inalienable right,
grounded in values such as dignity which underlie all our fundamental rights, and it categorically
located privacy in the individual. While judges phrased their conceptions of privacy differently,
the bench commonly held privacy to cover personal autonomy relating to the body, mind, and to
making choices, as well as informational privacy. A key aspect of this personal autonomy are
reproductive rights, which entail rights to make sexual and reproductive decisions, as recognised
by the 1994 United Nations International Conference on Population and Development (UNPIN
1994). These rights have been elaborated to include access to contraception, the right to a legal
and safe abortion, the ISSN (Online) - 2349-8846 right to make decisions concerning
reproduction free of discrimination, coercion and violence, the right to not be subject to harmful
practices such as the coerced bearing of children (including with their spouse); and equal
entitlement of LGBTQ persons to the same sexual and reproductive health services as all other
groups (UNFPA, OHCHR, and DIHR 2014). Abortion and Reproductive Autonomy The
Puttaswamy judgment specifically recognised the constitutional right of women to make
reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution
(Justice K S Puttaswamy v Union of India 2012a: para 72, 2012b: para 46, 2012c: para 38). The
bench also reiterated the position adopted by a three-judge bench in Suchita Srivastava v
Chandigarh Administration (2009), which held that reproductive rights include a woman’s
entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children;
and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity.