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The Commissions For Protection Of Child Rights Act, 2005
Article 32 in The Constitution Of India 1949

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Supreme Court of India
2. The Commissions For Protection ... vs G.E. Vahanvati, Abhinav Sharma, ...

HELD : 1. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. The word "surrogate", from Latin "subrogare", means "appointed to act in the place of". The intended parent(s) is the individual or couple who intends to rear the child after its birth. In "traditional surrogacy" (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. 'In "gestational surrogacy" (also know as the Host method) the surrogate becomes pregnant through embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier. "Altruistic surrogacy" is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses). "Commercial surrogacy" is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms". Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies, the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks. [Paras 5 to 12] [1133,B; 1133, D-E; 1133,F-H; 1134, A-C; 1134,F-H]

2. The Commissions for Protection of Child Rights Act, 2005 has been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children's courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. If any action is to be taken that has to be taken by the Commission. It has a right to inquire into complaints and even to take suo motu notice of matters relating to, (i) deprivation and violation of child rights (ii) non-implementation of laws providing for protection and development of children and (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities. No complaint has been made by anybody relating to the child, the petitioner in this Court. If the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be availed. [Paras 4, 13, 14 and 17] [1130,H; 1131,A; 1135,A-C; 1135,F] CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 369 of 2008

(Under Article 32 of The Constitution of India)

Indira Jaising, Lalit Mohini Bhat, Hetu Arora and Naveen R. Nath for the Petitioner.

G.E. Vahanvati, Abhinav Sharma, R.K. Singh, Narender Tripathi, Debasis Misra, Devadatt Kamat, Sushma Suri, Saket Sikri, V.K. Rao and madhu Sikri for the Respondents.