1. Baby Manji Yamada v. Union of India (2008) – Supreme Court of India

Facts:

• A Japanese couple commissioned a child through a surrogate mother in India.
• Before the child was born, the couple divorced.
• The commissioning mother refused to accept the child.
• The genetic father wanted custody but faced legal and visa complications.
• The newborn was left in legal limbo in India.

Legal Issues:

• Who is the legal parent in surrogacy?
• Can a surrogate child be denied citizenship or travel documents?
• What is the status of a child born through commercial surrogacy?

Judgment:

• The Supreme Court allowed the child to leave India with the grandmother.
• The Court did NOT fully define surrogacy law but highlighted the legal vacuum.
• It treated surrogacy as a “commercial arrangement” not yet regulated properly.

Significance:

• First major Indian Supreme Court case recognizing surrogacy complexities.
• Exposed absence of legislation.
• Triggered policy reforms leading to stricter surrogacy regulation later.

2. Jan Balaz v. Anand Municipality (2008) – Gujarat High Court

Facts:

• A German couple had twins through an Indian surrogate in Gujarat.
• Germany refused citizenship because surrogacy was not legally recognized.
• India also had no clear citizenship rules for surrogacy-born children.

Legal Issues:

• Are surrogate children stateless?
• Who is the legal parent under Indian law?
• Can birth certificates determine parentage?

Judgment:

• Gujarat High Court held:
  • Genetic father could be recognized as legal father for passport purposes.
  • Directed issuance of travel documents to prevent statelessness.

Significance:

• Highlighted cross-border surrogacy complications
• Emphasized need for uniform international surrogacy rules
• Became a key reason India later moved toward restricting foreign surrogacy

3. Jan Balaz Appeal (Supreme Court of India – 2009 proceedings context)

What happened:

• The matter reached the Supreme Court indirectly through visa and passport issues.
• India had to coordinate with Germany for citizenship resolution.

Legal Position:

• The Court avoided creating a full legal framework.
• Focus remained on protecting children from being stateless or abandoned.

Significance:

• Reinforced judicial hesitation in defining surrogacy comprehensively.
• Showed courts preferred case-specific humanitarian solutions rather than law-making.

4. In Re Baby M (1988 – New Jersey Supreme Court, USA)

Facts:

• A traditional surrogacy arrangement (surrogate used her own egg).
• Surrogate refused to hand over the child after birth.
• Intended parents sued for custody.

Legal Issues:

• Is surrogacy contract enforceable?
• Can parental rights be transferred by agreement?

Judgment:

• Surrogacy contract declared void and against public policy.
• Surrogate (biological mother) retained parental rights.
• However, custody given to biological father in child’s best interest.

Significance:

• One of the earliest global surrogacy judgments.
• Established that money-based surrogacy agreements can violate public policy.
• Influenced later Indian debates on banning commercial surrogacy.

5. Re G (Surrogacy: Foreign Domicile) (UK case law, early 2000s context)

Facts:

• A UK-based couple used a surrogate abroad.
• Questions arose about recognition of parental rights when returning to the UK.

Legal Issues:

• Whether intended parents can automatically become legal parents.
• Whether foreign surrogacy arrangements are enforceable in UK law.

Judgment (principle developed through UK courts):

• UK courts held that:
  • Surrogacy agreements are not automatically enforceable.
  • Legal parenthood is determined by law, not contract.
  • Courts can issue “parental orders” after birth under strict conditions.

Significance:

• Introduced idea of post-birth judicial approval system
• Strongly influenced Indian lawmakers while drafting surrogacy regulations

6. High Court of Delhi – Surrogacy related custody jurisprudence (multiple cases pre-2021)

General Pattern:

Before the 2021 Act, Delhi High Court dealt with several disputes involving:

• Custody of surrogate children
• Passport issues
• Foreign intended parents refusing children
• Compensation disputes with surrogates

Judicial Approach:

• Always applied “best interest of the child” doctrine
• Avoided strict enforcement of surrogacy contracts
• Recognized surrogacy as a hybrid of contract + family law + constitutional rights

Significance:

Built consistent judicial principle:

Child welfare overrides contractual surrogacy terms

Evolution of Legal Position in India (Summary)

From these cases, Indian courts consistently held:

1. Surrogacy is NOT purely contractual

Courts refused to treat it like a commercial service agreement.

2. Child welfare is supreme

Every decision prioritized the child’s best interest.

3. Legal vacuum existed

Cases repeatedly exposed absence of regulation.

4. Risk of exploitation

Concerns over poor women becoming surrogates for foreign couples.

Resulting Legislative Change

These judgments directly influenced:

• ART (Assisted Reproductive Technology) Regulation
• Surrogacy (Regulation) Act, 2021

Key outcome:

• Commercial surrogacy banned
• Only altruistic surrogacy allowed in limited cases
• Strict eligibility conditions introduced

Final Insight

Surrogacy law in India was not created in a single judgment. Instead, it evolved through:

• Humanitarian case decisions (Baby Manji)
• Citizenship and cross-border issues (Jan Balaz)
• Global legal influence (Baby M case)
• And finally culminated in statutory control in 2021