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Contemporary Human Rights Issues
and Challenges:
Global and Regional Perspectives
First Edition
Editors
Prof. Dr. Aditya Tomer
Dr. Kartika Bakshi
Rupendra Singh
Dr. Nitan Sharma
ii
Title of the Book: Contemporary Human Rights Issues and Challenges: Global
and Regional Perspectives
Edition First: 2023
Copyright 2023 © Authors and Editors
Editors
Prof. Dr. Aditya Tomer, Additional Director & Joint. Lead, Amity Law
School, Noida.
Dr. Kartika Bakshi, Assistant Professor, Amity Law School, Noida.
Rupendra Singh, Assistant Professor, Amity Law School, Noida.
Dr. Nitan Sharma, Assistant Professor, Amity Law School, Noida.
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~95~
Human Rights Of The Children Born
Through Surrogacy:
An Extended Briefing
- Dr. Richa Saxena
Assistant Professor,
Faculty of Law,
University of Lucknow.
ABSTRACT
Convention on the Rights of Child under Article 7 ensures that Every child has
right to know his or her parents, right to be in care and protection of the parents,
right to have name and be register immediately after birth and also have
nationality. While the birth of child is a natural phenomenon, those who are
able to give birth are fortunate. Though, there is nothing to worry for those
who cannot procreate medically or socially. Now a day’s medical science has
developed highly advanced technologies that are sufficient not only to cure the
problems of infertility but is able to provide alternatives of the coitus too.
Surrogacy is one of such technology, in which third party involves in
reproduction as a ‘carrier of the womb’ to gestate and to give the birth to the
child of the intended parents without retaining her parental rights after birth of
the child. The process of surrogacy arises out of the agreement between the
intended parents and women who serve her womb for the purpose called
Surrogate. It is a complex phenomenon, assisted by the medical technologies.
The practice of surrogacy is on the rise. It is most preferable and practiced
method to gets child. All is not as well, because it is often mentioned that
commercial surrogacy leads the ‘Sale of Children’. In case of inter country
surrogacy arrangement; an emergent concern about the rights of children arises.
Especially in case of Inter Country Surrogacy arrangements, it is the obligation
of the State parties to prohibit and to create safeguard to prevent ‘sale of
child’. In contrast, a worldwide demand to regularize and legalize commercial
surrogacy is violation of the International prohibition on the sale on children.
This chapter is written in the perspective to highlights the emerging human
rights issues of the children born through surrogacy.
Keywords: Human Rights, Convention on the Rights of Child, Surrogacy,
Medical Technologies, Commercial Surrogacy.
*****
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~96~
I. INTRODUCTION
The future of the human race is depending upon the birth of a Child. To
have a child is not only a wish of the parents but it is a social, religious and
cultural need of the human society. With the advancement in medical
technology in last three decades, birth of a child is not restricted to need of
parents (mother and father), their marriage and fertility. Birth of a child moved
forward from all such barriers. Even an individual (male, female or third
gender), married couples, same sex couples, in fact anyone or everyone is
physically able and legally eligible to get parenthood, irrespective of their
fertility status and marital ties. Parenthood is a human right. ‘Right to marry’
and ‘’to form a family’ are Human Right under UDHR.135 State and Society
has obligation to provide protection to the family under ICCPR.136 The right to
have family includes access to reproductive technologies. Under ICESCR there
is a right to “enjoy the benefits of scientific progress and its application to
everyone”.137 Such right provides an opportunity to the people to have
recourse of mordent reproductive technologies. Since the first test tube baby
birth in 1978138, a reproductive technology has crossed several stepping stones
in advancement. It is developed to the extant, as from the more reliable IVF to
the freezing of sperms and ova (cryopreservation), from the gene editing to
intracytoplasmic sperm injections (ICSI), birth of child is not restricted to
natural conception but singles and homosexuals are also equipped to have a
child. These technological advancement (such as IVF), softening of cultural
135Article 16 of the UDHR provides “ Men and Women of full age without any limitation, due to race
rationality or religion have the right to marry and to found a family”
136Article 23 of the UDHR provides “Family is the natural and fundamental group unit of society and is
entitled to protection from the society and the State”.
137Article 15 of the ICESCR, 1966.
138Luice Joy Brown the world’s first baby to be conceived via IVF. available at: www.history.com (Last visited
on March 23, 2023).
Child is, to prayed for
Child is, to paid for,
Child is born
Child is beget too,
Mothers gave birth to own Child
Surrogates gave birth to others’ Child
It’s all ‘technology’
Be careful, you all
Child is Vulnerable
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~97~
attitudes(such as singles, homosexuals and LGBT communities rights of
parenthood) and the trend for having children (via medical advancement) later
have fuelled a recent boon in surrogacy139. Surrogacy is one of such technology
which is booming all over the world. It is a method of delivering a child by
the involvement of third person, called ‘surrogate’. Surrogacy, is an
arrangement by which a woman agrees to be impregnated by assisted
conception, carries the resulting foetus, and relinquishes all parental rights of
the child at birth140. It is proved to be most favorable for those who cannot or
choose not to give birth to the child. The first surrogate child was born in 1985
through the Gestational Surrogacy141 and the method become most popular and
practiced mode of getting child for those who are either socially of biologically
infertile. Number of Children born through surrogacy triples in UK in the past
five years.142 In US about 750 babies are born each year using gestational
surrogacy143. Up to 1000 babies born to surrogate mothers stranded in Russia.144
In globalized world, where people are connected with each other on the tip of
finger, Surrogacy has crossed the international borders, and open to everyone
on the basis of availability of surrogates and facilities of advanced reproductive
technologies (Reproductive Tourism), irrespective of gender, status, nationality,
residence, culture, and social scenario of the individuals and concerned laws of
the Countries. International Surrogacy Arrangements are unregulated and
caused serious concerns towards the Human Rights of the Surrogates and
Children born out of such arrangements. As it is mentioned in the thirty seventh
session of the Human Rights Council Report in (Feb March 2018), there is
diverse pattern of International Surrogacy arrangements all over the world in
accordance to the domestic laws of the concerned countries145. The pattern of
such arrangements are like that Intended Parents are form the Developed
Countries ( USA, UK, Germany, Australia, Canada, France Spain Italy etc ) and
Surrogates are form the Developing Countries( India(though ban International
commercial surrogacy since 2012, Nepal, Thailand, Cambodia). Recently,
Indian Parliament in Dec 2021 passed, Surrogacy (Regulation) Act 2021 to
regulate surrogacy arrangements and banned commercial surrogacy completely.
139‘Claire Fenton- Glynn, ‘Surrogacy: Why the world needs rules for ‘selling’ babies’, www. bbc.com , 26 April
2019, , visited on 23/03/2023.
140Katherine B. Lieber, ‘Selling the Womb: Can the Feminist Critique of Surrogacy be Answered?’, 68 Indiana
Law Journal, 205(1992).
141“A surrogacy arrangement in which the Surrogate does not provide her own genetic material and thus the
child born is not genetically related to surrogate. Such as Arrangement usually occur following IVF Treatment.
The Gametes may come from both intended parents, one or neither” Form the Glossary of ‘A Preliminary
Report on the issues arising from International Surrogacy Arrangements’, available at www.hcch.net , visited on
28/12/2022.
142Available at: https://inews.co.uk, Jan 27, 2017, visited on 23/03/2023.
143Available at: http:// www.webmd.com, 6th Sep 2019, visited on 26/03/2023.
144The Guardian. 29th July 2020 Andrew Roth, visited on 26/03/2023.
145Para 14, ‘Report of the Special Rapporteur on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material’ available at:
https://www.ohchr.org/en/issues/children/pages/childrenindex.aspx www.ochr, visited on 27/03/2023.
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~98~
Legal Status of Surrogacy Arrangements has different status in different
countries. Some States prohibits such as Germany and France prohibits all sorts
of Surrogacy arrangements, while UK, Australia, South Africa, New Zealand
prohibits only commercial surrogacy and allowed altruistic surrogacy, some
permits and become hub of the commercial surrogacy such as California
Grorgia, Ukraine, and Israel, some regulated in recent years by the reason of
abusive practices such as India, Nepal and Thailand, and Mexican State of
Tobasco146. Somewhere still surrogacy is unregulated, some states of Latin
America and Africa.147
In such circumstances there is a state of flux over the legality of
surrogacy arrangements, country to country. The legal issues raised in Baby M
case148 in USA in the year 1983 was not sorted finally but extended to other
various issues later in Baby Manjhi case149 in India, Aki Mukai case150 in Japan,
Shelly Shepherd Case151 in Pennysalivia, and so on. There is serious concerns
towards the human rights of the children, such practices are violative to the
international prohibitions on the sale of children and International standards of
the Law of Adoption. Status of the legality of surrogacy arrangements creates
conflicts regarding Nationality of Child, Relationships of Child, and Custody of
the Child and welfare of the children. In current scenario, ‘The Concluding
Observation and recommendations of the CRC Committee, The Thematic
reports on Children and Surrogacy of the UN Special Rapporteur on sale and
sexual exploitation of Children and Verona principles’152 has provide guidelines
for the protection of Children born of Surrogacy.
146 See “An update on the work of the Hague Conference on Private International Law”, Mededelingen van de
Koninklijke Nederlandse Vereniging voor International Recht, No. 144 (2017); and Audrey Wilson, “How
Asia’s surrogate mothers became a cross-border business, South China Morning Post, available at
www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-becamecross- border-business.
From, ‘Report of the Special Rapporteur on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material’ available at:
https://www.ohchr.org/en/issues/children/pages/childrenindex.aspx, visited on 27/03/2023.
147 Roli Srivastava, Factbox: Which countries allow commercial surrogacy?, THOMPSON REUTERS (Jan. 18,
2017),
https://www.reuters.com/article/us-india-women-surrogacy-factbox/fatcbox-which-countries-allow-
commercialsurrogacy- , From University of Chicago Law School - Global Human Rights Clinic, "Human Rights
Implications of Global Surrogacy" (2019). Global Human Rights Clinic. 10. available at:
https://chicagounbound.uchicago.edu/ihrc/10, visited on 27/03/2023.
148 109 NJ. 396(NJ.1988.
149 (2008) 13 SCC 518.
150 Minshu Vol 61, No 2.
151 2015 PA Super 244.
152 ‘Key Considerations: Children’s Rights and Surrogacy’, available at: www.unicef.org./media/115331/file
,
visited on 29/03/2023.
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
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Concerns towards the Children in Surrogacy Arrangements
“The Family formation should not be accomplished through the abduction of,
the sale of, or traffic in children”153
Commercial Surrogacy arrangements, either International or National
involve prohibited practices. Over the past few decades, there have been
horrific stories of commercial surrogacy and greed—either by those with
money taking advantage of surrogate mothers who need money, or
disingenuous individuals taking advantage of those who are desperately want to
be parents154. All that is other than those legal conflicts which were raised and
attended by the Courts in different jurisdictions as mentioned155. Baby Gammy
case156, Babe 101157, thirty two Cambodian pregnant women charged with
human trafficking158 has open the eyes of the world and international
community raised their concerns towards human rights issues of the children
born out of the Surrogacy. Some cases were reported that commercial surrogacy
is used as baby farming scheme and pregnant surrogates were transferred
illegally from the National borders to surpass the domestic laws159. Surrogates
form the developing countries are engaged and used to provide children to the
Intended parents from the developed countries through the intermediaries.
India, Nepal, Thailand, prohibited international commercial surrogacy in that
reference some year before as mentioned above. It is very strange that such
abusive practices are in those jurisdiction where commercial surrogacy is
regulated by law. For example, from the California, when two Surrogacy
Attorneys were convicted in baby selling ring and exposed to media that she
was “ tip of “iceberg” of a “corrupt billion-dollar industry.”160 In Cook v
153 ‘Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution,
child pornography and other child sexual abuse material’, available at:
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/37/60, visited on 29/03/2023.
154Lily Johnson, ‘Commercial Surrogacy is the Sale of Children? An Argument that commercial surrogacy does
not violate International Treaties’ Washington International Law Journal Vol 28 No. 3, pg 701-726, at pg 706
155Baby M Case, Jhonson v Culvert, Aki Mukai case, Baby Manjhi Case.
156Baby Gammy: Surrogacy row family cleared of abandoning child with down Syndrome in Thailand,
available at: https://www.abc.net.au/news/2016-04-14/baby-gammy-twin-must-remain-with-family-wa-court-
rules/7326196, visited on 29/03/2023.
157Jhon Fernquest, ‘Commercial Surrogacy’, 5th may 2011, available at:
ttps://www.bangkokpost.com/learning/advanced/225571/commercial-surrogacy,visited on 21/12/2021
158 Dr Melanie Krause, ‘Pregnant Cambodian surrogates charged with human trafficking’, available at: http//-
www.bionews.org.uk/page_ 137194, visited on 29/03/2023.
159Seehttps://www.pri.org/stories/2011-03-18/underworld-upending-asian-baby-farmand www.scmp.com/week-
asia/society/article/2096675/how-asias-surrogate-mothers-became-crossborder-business cited in , ‘Report of the
Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child
pornography and other child sexual abuse material’ available at:
https://www.ohchr.org/en/issues/children/pages/childrenindex.aspx, visited on 29/03/2023.
160Rory Devine and R. Stickney, “Convicted surrogacy attorney”, available at:
www.nbcsandiego.com/news/local/Theresa-Erickson-Surrogacy-Abuse-Selling-Babies-140942313.html, cited in
‘Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution,
child pornography and other child sexual abuse material’ available at www.ochr,com , visited on
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~100~
Harding161, the questions raised on the statutes permits and regulated
commercial surrogacy. It is mentioned that no specific guidelines are provided
who can be serve as surrogate, and these laws are designed to enforce the
contract to support the reproductive industries irrespective of the health,
protections of the surrogate women and welfare of the Children born through
the process.
In these circumstances it is genuine concerns that commercial surrogacy
involves ‘sale of children’ and ‘trafficking in child’.
1.
Sale of children
Sale of Children is prohibited under the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography, 2002162 and
Convention on Rights of Children163. It is expressly provided that sale of
children means
“An act or transaction whereby a child is transferred by any person or
group of persons to another for remuneration or any other consideration”
164 and
“State parties shall take all appropriate national, bilateral and multilateral
measures to prevent the abduction of, the sale of or the traffic in children for
any purpose or in any form”165
While on literal interpretation of the definition of the sale of children as
provided under article 2(a) of the Optional Protocol of 2002 on the rights of
Children there is two component in the sale of children. One is ‘child is
transferred from one to other’ and other is ‘remuneration or consideration’.
Both content is available in the commercial surrogacy. Not only that
commercial surrogacy is a kind of arrangement where a child is to beget in
response to agreement of given other. It means ‘birth of child’ is regulated
and executed in accordance to the conditions of the Contract of Surrogacy.
As mentioned by the Holder (1990) “it is repugnant to the children to be
subject of contract and commerce”.166 Before that in 1983, Warnock
30/03/2023.
161 190 F. Supp., 3d 921(C.D.Cal 2016).
162 Article 1 of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 2002.
163 Article 35 of the Convention on the Rights of Child, 1989.
164 Article 2(a) Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 2002.
165 Article 35 of the Convention on the Rights of Child, 1989.
166 Angela R Holder “Surrogate Motherhood and the Best Interests of Children” in Larry Gostin (ed) Surrogate
Motherhood, Politics and Privacy (Indiana University Press, Bloomington, 1990) 77 at 77,cited in Nattalie
Baird, Commercial Surrogacy and Sale of Children: A call for the action of the Committee on the rights of
Child’, available at https://ir.cantenbury.ac.nz/10092/17564, visited on 30.03.2023.
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~101~
Committee (Britain) Reports, that commercial surrogacy is a degrading
practice because it involves payment of money for the birth of child167. Not
only that Warnock Committee disapproves both form of surrogacy i.e
traditional and gestational and recommended legislation for rendering
surrogacy arrangement unenforceable and punishment for the all those
facilitating surrogacy arrangements or earning profit etc.168 later in 1997
Brazier Committee also mentioned that in surrogacy arrangement payment
to surrogate for birth of child is against the welfare of the child.
All such recommendations were later proved right, when commercial
surrogacy crossed the International border and surrogates from the
developing countries were used as ‘carrier of womb’. When the cause of
being surrogate has been examined in between the Indian women, it comes
into notice that there economic conditions was the major reason of their
involvement in such an unusual act. Some were to support their family,
some were to earn their livelihood, and others were to educate their children
or to make one floor of the house169. At one end its all commercialization of
reproductive capacity of women and on the other it just convert a birth of
child into production and child as a product. Though, in contrast it is said
that transfer of child from one to another for remuneration is not sale, unless
it is for illicit purpose. Obviously, in case of commercial surrogacy
apparently, nothing is illicit, but there is apprehension of abuse of child.
Such apprehensions are proved in some cases like baby farming and others.
2.
Trafficking of child
The International Surrogacy market appears to have significant and growing
overlap with human trafficking170. Human trafficking involves the
procurement of an individual for the purpose of forced labor and/or sexual
exploitation and is prohibited by various human rights instruments,
including CEDAW and the 2002 Protocol to Prevent, Suppress and Punish
Trafficking Persons, especially women and Children171. The Protocol defines
167See, Para 8.11 of the Warnock Committee Report ‘Report of the Committee of Inquiry into Human
Fertilization and Embryology’, available at: https://www.hfea.gov.uk/media/2608/warnock-report-of-the-
committee-of-inquiry-into-human-fertilisation-and-embryology-, visited on 30/03/2023.
168Jaqualine A. Priest, The Report of the Warnock Committee on Human Fertilization and Embryology, Modern
Law Review, Vol.48,No.1 (Jan 1985 ),73-85 at 83, available at:
http://www.jstor.org/stable/1095849, visited on 1/04/2023.
169See the graph 3.19 at pg 55 in Final report Surrogate motherhood, ethical or commercial, Centre for Social
Research, available at: final report.pdf (wcd.nic.in), visited on 1/04/2023.
170Grace Meton and Melanie Israel, ‘How surrogacy harms women children’ The Heritage Foundation,
available at: https://www.heritage.org/marriage-and-family/commentary/how-surrogacy-harms-women-and-
children, visited at 2/04/2023.
171CEDAW; 2002 Protocol to Prevent, Suppress and Punish Trafficking Persons, Especially Women and
Children;
ASEAN Convention Against Trafficking in Person, Especially Women and Children. cited in University of
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~102~
human trafficking by three components: an action consisting the
recruitment, reception, transfer or harboring of persons; using improper
means to achieve that action (such as coercion, force, fraud or abduction);
with an improper purpose (sexual exploitation or forced labor).172 These
three components of trafficking involved in certain cases of International
Commercial Arrangements173. Intermediaries (Clinics, Medical
professionals, Agents etc who facilitate the process of surrogacy and also
arranged surrogates) involved with ‘recruitment, reception and harboring of
persons’. Payment and other incentives to surrogate (promised by
intermediaries and intended parents) to seduced her for doing such unusual
work out of course of ‘natural love and affection’ but for ‘payment’, may
be ;coercion, force, fraud or abduction’. In case if there is exploitation or
forced labour it is ‘improper purpose’. It does mean that surrogacy
armaments involved Human trafficking. But there is serious concerns over
the issues raised in International Surrogacy Arrangement, especially in those
cases where surrogates from the poor background are either forced expressly
or voluntarily involved due to their poverty or any other reasons. Therefore
it is required that States has to take initiatives for the protection from the
trafficking of both women and children.
In response to these concerns, here in India, Surrogacy (Regulation) Act
2021, expressly provides that surrogacy or surrogacy procedure is not
permitted for the commercial purpose or for commercialization of surrogacy
or for producing children for sale, prostitution or any other form of
exploitation174. Not only that commercial surrogacy, exploitation of
surrogate mothers or children born through surrogacy is punishable offence
for which ‘imprisonment which may extend up to ten years with fine which
may extend to ten lakhs rupees’175.
Chicago Law School - Global Human Rights Clinic, "Human Rights Implications of Global
Surrogacy" (2019). Global Human Rights Clinic. 10. https://chicagounbound.uchicago.edu/ihrc/10, visited
on 2/04/2023.
172The
Protocol to Prevent, Suppress, and Punish Trafficking in Persons, G.A. Res. 55/25, annex II, U.N.
GAOR, 55th Sess., Supp. No. 49, art. 3(a), U.N. Doc. A/45/49 (Vol. I) (2001). cited in University of Chicago
Law School - Global Human Rights Clinic, "Human Rights Implications of Global
Surrogacy" (2019). Global Human Rights Clinic. 10. https://chicagounbound.uchicago.edu/ihrc/10, visited
on 2/04/2023.
173Supra note 21, 22 and 23.
174Sec 4(ii), read with sub clause (b) and (c), of Surrogacy (Regulation) Act, 2021.
175 Ibid, sec. 38(2).
Human Rights Of The Children Born Through Surrogacy:
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Human Rights of the Children born through Surrogacy
“No child should be disadvantaged, suffer harm, be punished because of the
circumstances of their birth”176
In the circumstances where there is diverse approach towards the
surrogacy arrangement all over the world, there is an urgent need to discuss the
human rights of the children born out of the surrogacy arrangements. It is an
obligation of the States to take initiatives for the protection of rights of children
born through surrogacy. To safeguards the rights of children and for the
protection of their best interests it is very much required by the International
Commitment to draw the attention towards the human rights of the children
born through surrogacy arrangements. Surrogacy arrangement creates confusion
and conflicts towards basic human rights of the child to know his parents and
origins. For example, motherhood distinguishes in to biological mother (female
genetic contributor to the creator of the infant who give birth to the child or
donate eggs), and gestational mother (a women whose womb is used to nurture
the embryo. She may be a biological mother or not, depending on mode of
surrogacy arrangement applied, i.e. Traditional surrogacy177 or gestational
surrogacy178). It can be understand with an example, where one married
infertile woman wish to get child of her husband first make a contract with
other women who agrees to give ova for in-virto fertilization(with husband
semen) and secondly with other women who agrees to use her womb to carry
the child. All features of family origin mingled with biological mother,
gestational mother and intended parents. This conflicts of parenthood is
extended to some other individuals too in a case where intended women is
single used donor’s gametes (sperms and ova), and hire a surrogate
(gestational mother in gestational surrogacy), conflicts over parental rights
created. 179 Such conflicts over parental rights already arises in some of the
famous surrogacy arrangements. In Baby M case (1987), traditional surrogacy
arrangement was made and gestational mother (who was biological mother too)
on birth of child denied to give the child to the intended parents. Custody of
the child was given to the Intended father and gestational mother (surrogate
mother) was held natural mother of the child and has provided visitation rights.
Though Surrogacy Contract was held illegal and invalid as in contravention to
176Principles of the Protection of rights of Child born through Surrogacy (Verona Principles), available at:
https//-www.iss-ssi.org/images/surrogacy/ Verona Principles, visited on 1/04/ 2023.
177 A Surrogacy arrangement in which surrogate provides genetic material and the child born is genetic related
to the surrogate.
178A surrogacy arrangement in which surrogate does not provide her own genetic material, but ‘lent her womb’
only.
179See, Bryn Williams-Jones, Commercial Surrogacy and the Redefinition of Motherhood, vol 2 Feb
2002,Journal of Philosophy Science and Law.
Human Rights Of The Children Born Through Surrogacy:
An Extended Briefing
~104~
the public policy. In case of Jhonson v Culvert (1993) gestational surrogacy
arrangement was made and gestational mother was not biological mother.
Intended parent’s gametes were used for the in -virto fertilization and embryo
was transferred to gestational mother womb (surrogate mother). Intended
mother was held to be a natural mother of the child and Surrogacy contract was
held legal and valid not violative to the public policy. In re Buzzancca case
(1998) on the issue that surrogate child born through donor gametes has legal
parents, it was held that intended parents are legal parents of such child.
Conflicts and confusion over the parenthood rights does not stop here, more
serious issue raised when intended parents denies custody of child after birth
and surrogate mother don’t want to take the custody. In such circumstances
child become abandoned. In re Baby S case180 intended disown the child born
through surrogacy arrangement via her husband. It was held that parties to
surrogacy contract are bound by the terms of the contract for the best interest of
a child. Parenthood and custody was not only the issue, issue of nationality and
origin was also one of the important issue in the transnational surrogacy
arrangements. In Baby Manjhi Yamanda case from India, Aki Mukai case from
Japan Madam X case from France, domestic Courts were intervene to resolve
the issues of nationality and citizenship of the child born through surrogacy. It’s
all violation of inherent basic rights of the child under convention on Rights of
Child181.
With the increasing popularity of the surrogacy arrangements all over the
world in all of its mode, i.e. from altruistic to commercial, from traditional to
gestational, apprehension of violation of basic human rights of the child born
through such arrangement increased. In 2013, International Social Service
(ISS) has taken an initiative to respond towards the human rights of the child
born through the surrogacy. In 2016, it launched a mission to draw a principles
that could be agreed globally to guide policies and legislations. The work of the
ISS is recognized and represented by the United Nations Special Repporteur on
the Sale and Sexual Exploitation of children in 2018.182 Recently in 2021, it
designed and published list of Human rights of the Children born through the
Surrogacy to guide the policies and legislations. It is called VERONA
principles183.
It is fortunate that Surrogacy (Regulation) Act, 2021 is well responded to
all these issues. It is expressly provided in the Act, that “A child born out of
surrogacy procedure shall be deemed to be a biological child of the intending
1802015 PA Super 244.
181Article 2, 3, 7 and 8 of the CRC, 1989.
182UN Doc.A/HRC/37/60.
183Principles for the protection of the rights of the child born through surrogacy(Verona principles), available at:
MARCH 2021: ISS launches the Verona principles for the protection of the rights of the child born through
surrogacy (iss-ssi.org), visited on 2/04/2023.
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couple or intending women and the said child shall be entitled to all rights and
privileges available to natural child under any aw for time being in force” 184
Some of the human rights of the children born through surrogacy are as follows.
1.
Right of human dignity
All children, irrespective of the circumstances of their birth, have inherent
and equal human dignity185. Commercial Surrogacy arrangements leads
child into commodity. Child is begetted and given birth on demand of
intended parents and supplied by the surrogate in return of the payment. A
Child cannot be given birth on promise to give others in advance and in
return of payment. In case of altruistic surrogacy, ‘natural love and
affection’ between intended parents and surrogate must be an issue of
enquiry. Taken child as ‘commodity’ or ‘product’ regulated and executed in
accordance to demand (intended parents wish to get child) and supply (to
find the surrogate, to provide medical facilities, payment, etc by the
intermediaries), is definitely violation of human dignity. Not only that
surrogacy arrangements provides opportunity to the intended parents to have
a child of their choice with specific characteristics (curly hairs, blue eyes,
whitish and so on) i.e., designer baby. All that, and more are violation of
human dignity. State must prohibit such surrogacy arrangements where,
there is involvement of sale of child, trafficking of child, or even
exploitation of child.186
2.
Protection from discrimination
Every child has right of protection from discrimination of any kind, on the
basis of “his parent’s, local guardian’s race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property,
disability, birth or other status”.187 It is an obligation of the State parties “to
take all appropriate measure to ensure that the child is protected against all
forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child’s parents, legal guardians, or
family members”.188 These protections from discrimination are available to
every child irrespective of the facts concerned with their birth. For example,
child may born through surrogacy arrangement in the jurisdiction where
surrogacy is not legal, or child is disable, or child’s birth is not registered, or
child’s nationality is in question, or child’s intended parents status or
184 Sec 8 of the Surrogacy (Regulation) Act, 2021.
185 Article 2 of the CRC, 1989.
186 See, sec. 4 of the Surrogacy Regulation Act, 2021.
187 Article 2(1) of the CRC, 1989.
188 Article 2(2) of the CRC, 1989.
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otherwise.189
3.
Right to life and health
Every child has inherent right to life. It is an obligation of the States to
ensure to the maximum extent the survival and development of the
child.190Every child has right to “the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and
rehabilitation”191. State parties are under obligation to ensure that every child
has right to access of such health care services. In case of surrogacy
arrangement such right to health extended to
The screening of transmissible diseases on the genetic material of donors is
compulsorily required and intimation of result to both the intended parents
and surrogates
a. Mandatorily health insurance for the child born
b. In the contract it must be mentioned that, intended parents has to
prepare if the child born is in need of additional medical care.
c. Pre and post natal care of the surrogate mother 192
4.
Protection through surrogacy agreement
Children born through surrogacy arrangements must provide certain rights
and protection through the surrogacy agreement itself. Surrogacy agreement
must be prepared in the form as it itself reduce the conflicts of parenthood.
There should be prior enquiry about the criminal history and child abuse
registries of the intended parents and surrogate mother too. Surrogacy
agreement must include provisions regarding taking good care of child
including financial support and medical insurance and if required for the
future guardian ship arrangements.193
5.
Best Interest of child
For the child born through surrogacy his best interest is paramount in all
decisions194. It may be to decide their legal parents or to ensure his legal
custody or anything else required for his nurture and care protection and
welfare. In case of conflict between the intended parents and surrogate
mother, the court and other authorities to ensure best post natal care of the
189 Principle 3 of the Verona principles.
190 Article 6 of the CRC, 1989.
191 Article 24(1) of the CRC, 1989.
192 Principle 4 of the Verona Principles.
193 Principle 5 of the Verona Principles.
194 Article 21 of the CRC, 1989.
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child. Child must not be unnecessarily separated from his biological parents.
It must also ensure that child must be genetically related to one parent. In
case, child is not related to any of the intended parents, they are not allowed
to leave the child after birth abandoned. When both parents separate child
must be given into custody of the biological parent rather than in adoption to
others. All these are the best interest of the child which were ensured by the
courts and other competent authorities in various cases. The States must
ensure that at the birth of the child, surrogate mother would be taken as
mother of the child and arrangement of the transfer of child has to make
conveniently without any legal conflicts, even in the case of international
surrogacy arrangements.(Baby Manjhi Yamada case from India and Aki
Mukai case involves such issue). In case of International Surrogacy, if one
state did not permit surrogacy did not permit specific arrangement for the
child, it is the duty of the state where intended parents wish to live with child
must make such specific arrangements195. To determine the best interest of
the child, it is required to examine, prior surrogacy arrangement the
intentions of the intended parents, child’s genetic links with the intended
parents, sibling relationship with child, eligibility of the intended parents to
be a good parents, the risk of any harm to the child, specific needs of the
child, financial status of the parents etc. 196 The best interest of the child
should be the basic concerns of the parents too.
6.
Legal Parentage of the child
Every child has right to know his parents and be cared for his and her
parents.197 The upbringing and development of child is equal responsibilities
of both the parents198. In case of child birth through surrogacy arrangement,
legal parentage has to be determined by the operation of Law. To avoid the
conflicts of parentage immediately after birth of the child certain measures
can be taken by the States through operation of law. In jurisdiction where
surrogate is a legal mother of a child on birth, a mechanism for transfer of
parentage would be make available by the States immediately after the birth
of child. If surrogate is not legal mother at the birth of a child, intended
parents has to give exclusively legal parentage of the child at the birth
without any other formalities, though custody of child to the intended
parents can be given after post natal care of child or otherwise. It is
expressly mentioned in the Principle 10.10 of the Verona principles that
“State shall prohibit, as constituting the sale of children, any termination or
transfer of legal parentage and / or parental responsibility, or promise to
195 Principle 6.6 of the Verona Principles.
196 Ibid., Principle 6.7.
197 Article 7 of the CRC, 1989.
198 Article 18(1) of the CRC, 1989.
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terminate or transfer legal parentage and / or parental responsibility, in
exchange for remuneration or any other consideration”.199
7.
Right of identity and access to origin
Every child has right “to preserve his or her identity, including nationality,
name and family relations as recognized by law without unlawful
intervention”200 Right to preserve identity includes perseverance of their
genetic, gestational and social origins201. It is obligation of the State to
ensure that “202every child born through surrogacy has the opportunity to
access to information as an adult”. To provide right to identity to the
children born through surrogacy it is very mush required that reproductive
material must be used form those individuals who are consented to verify
their identity and has no objection to disclose it to the child later when
required. Same for the Surrogate’s identity and information too. In
jurisdiction surrogacy is permit legally must maintain resister and national
records for such identity details of the donors, surrogates, child born out of
surrogacy arrangements and intended parents. It is a duty f intended parents
to avail all information’s before birth of the child which is required and
necessary for the identity of child203.
8.
Right of registration of birth and certification
Every child shall be “registered immediately after birth”204 and such
registration shall be without any discrimination concerned with the
circumstances of birth. Birth of all children must register including those
children whose parents are foreigners and those whose parents are unknown.
In jurisdiction where surrogacy is permitted, such registration will register
child in the National register with all required information’s, like,
identification of donors of reproductive materials, identification of intended
parents, identification of surrogate, medical clinics, intermediaries etc.
Certification of birth should issued to all children born through surrogacy205.
Such certification and birth registration should be updated in circumstances
of change of legal parentage. Details of identity of all involved and
concerned in the birth of child must disclosed only to competent authorities
not in public records. Such information’s’ must be accessible to child born
199 Cf. CRC at arts. 11 and 35; OPSC; UN SR Report, cited in Principles of the Protection of rights of Child
born through Surrogacy(Verona Principles), available at: https//-www.iss-ssi.org/images/surrogacy/ Verona
Principles _25February 2021, visited on 2/04/2023.
200 Article 8(1) of the CRC, 1989.
201 Oviedo convention, available at: www.coe.int/en/web/conventions/full-list/-
/conventions/rms/090000168007, visited on 3/04/2023.
202 Principle 11.2 of the Verona Principles.
203 Ibid., 11.8.
204 Article 7(1) of the CRC, 1989.
205 Principle 12.5 of the Verona Principle.
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out of such engagement or their representative with proper guidance and
counselling and in accordance to the age and maturity of the child206.
9.
Right to get nationality
Every child has right to nationality.207 Nationality law of State’s must not be
discriminatory to the circumstances of birth of child. Irrespective of the legal
status of surrogacy in the concerning country state’s nationality law should
avoid the ‘status of statelessness’ to the child born through such
arrangement208. To determine the nationality of the child, State should act
promptly. In case parentage is confirmed for the child born through
surrogacy, acquisition of nationality should be with same manner as for any
other child born in the territory of State. In case, circumstances are not like
Child must has given the nationality of the Intending parent’s States. Such
States has to initiate to provide the nationality to such child, irrespective of
the fact child is not born in the territory of the State209. In case child is
stateless due any reason, surrogate mother’s State must provide nationality
to the child210. Revocation or annulment of legal parentage must not cause
effect to the nationality of the child, if such child live in the territory of State
for specific time.211 One of the very important human right of the child born
through International Surrogacy arrangements that arrangement of visa to
travel with parents’ form the State of birth to nationality of parents while
legal parentage pending or facilitate child to stay in the country of birth with
the parents or surrogate mother.212
10.
Protection from the sale, exploitation and trafficking
Convention on Rights of Children provides that “State parties shall take all
appropriate national, bilateral and multilateral measures to prevent the
abduction of, sale of or traffic in children for any purpose or in any form”213.
In response to that State parties should prohibit surrogacy arrangement that
constitute or promote sale or traffic in children and provide safeguards to
them form sale.214 In case of commercial surrogacy it has to ensure that
payment to surrogate and determination or transfer of legal parentage must
be separate act. All payment and intermediaries must be regulated by law.215
206 Id., 12.8.
207 Article 15 of UDHR, 1948; Article 24 of ICCPR, 1966; Article 7 of the CRC, 1989.
208 Principle 13 of the Verona principle.
209 Id., 13.4.
210 Ibid.
211 Id., 13.7.
212 Id., 13.8.
213 Article 35 of the CRC, 1989.
214 Principle 14 of the Verona principles.
215 Ibid.
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II. CONCLUSION
Surrogacy is boon or bane, cannot be said exactly. It is boon for those
who wished parenthood but are incapable to give birth due to medical or social
reasons. It is bane when used to replace coitus intentionally or illegally,
irregularly, insensitively involved in sale of children, baby farming, child and
women trafficking, and when it is forced. Human existence depends on the
Human Reproduction. Medical technologies are for assisting human
reproduction. Surrogacy is one of such most popular and practiced method,
irrespective of the fact it is legal or illegal, prohibited or regulated, altruistic or
commercial. It is required to understand that the process of surrogacy is to
provide assistance to the reproduction. It is mere an alternative of reproduction
with the help and intervention of third party. Therefore, it has to always
applied in the manner, as most helpful, never disgraceful and neither misused. It
is to provide an opportunity of parenthood to those who can’t avail it naturally.
On the other hand to ensure the welfare of the child in the lap of parents. The
objective is to make this world happy for both parents and children. Thus, it
can best concluded as
REFERENCES
[1] Baby Manji Yamada v. Union of India & Anr., (2008) 13 SCC 518.
[2] ‘Claire Fenton- Glynn, ‘Surrogacy: Why the world needs rules for ‘selling’ babies’, www.
bbc.com, 26 April 2019, , visited on 23/03/2023.
[3] ‘Key Considerations: Children’s Rights and Surrogacy’, available at:
www.unicef.org./media/115331/file, visited on 29/03/2023.
Parenthood is Blessings
Childhood is Vulnerable
Human Rights is Priority
Technology is need of hour
Law is to protect Humanity
Life, Rights and Welfare of the Children is a priority
Irrespective of the fact they are born or beget.
Human Rights Of The Children Born Through Surrogacy:
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[4] ‘Report of the Special Rapporteur on the sale and sexual exploitation of children, including
child prostitution, child pornography and other child sexual abuse material’, available at:
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/37/60, visited on 29/03/2023.
[5] 109 NJ. 396(NJ.1988.
140942313.html, cited in ‘Report of the Special Rapporteur on the sale and sexual exploitation
of children, including child prostitution, child pornography and other child sexual abuse
material’ available at www.ochr,com , visited on 30/03/2023.
[6] 190 F. Supp., 3d 921(C.D.Cal 2016).
[7] 2015 PA Super 244.
[8] 2015 PA Super 244.
[9] Angela R Holder “Surrogate Motherhood and the Best Interests of Children” in Larry Gostin
(ed) Surrogate Motherhood, Politics and Privacy (Indiana University Press, Bloomington,
1990) 77 at 77,cited in Nattalie Baird, Commercial Surrogacy and Sale of Children: A call for
the action of the Committee on the rights of Child’, available at
https://ir.cantenbury.ac.nz/10092/17564, visited on 30.03.2023.
[10] Available at: http:// www.webmd.com, 6th Sep 2019, visited on 26/03/2023.
[11] Available at: https://inews.co.uk, Jan 27, 2017, visited on 23/03/2023.
[12] Baby Gammy: Surrogacy row family cleared of abandoning child with down Syndrome in
Thailand, available at: https://www.abc.net.au/news/2016-04-14/baby-gammy-twin-must-
remain-with-family-wa-court-rules/7326196, visited on 29/03/2023.
[13] Bryn Williams-Jones, Commercial Surrogacy and the Redefinition of Motherhood, vol 2 Feb
2002,Journal of Philosophy Science and Law.
[14] CEDAW; 2002 Protocol to Prevent, Suppress and Punish Trafficking Persons, Especially
Women and Children; ASEAN Convention Against Trafficking in Person, Especially Women
and Children. cited in University of Chicago Law School - Global Human Rights Clinic,
"Human Rights Implications of Global Surrogacy" (2019). Global Human Rights Clinic. 10.
https://chicagounbound.uchicago.edu/ihrc/10, visited on 2/04/2023.
[15] Cf. CRC at arts. 11 and 35; OPSC; UN SR Report, cited in Principles of the Protection of
rights of Child born through Surrogacy(Verona Principles), available at: https//-www.iss-
ssi.org/images/surrogacy/ Verona Principles _25February 2021, visited on 2/04/2023.
[16] Convention on the Rights of Child, 1989.
[17] Dr Melanie Krause, ‘Pregnant Cambodian surrogates charged with human trafficking’,
available at: http//-www.bionews.org.uk/page_ 137194, visited on 29/03/2023.
[18] Form the Glossary of ‘A Preliminary Report on the issues arising from International Surrogacy
Arrangements’, available at www.hcch.net , visited on 28/12/2022.
[19] From University of Chicago Law School - Global Human Rights Clinic, "Human Rights
Implications of Global Surrogacy" (2019). Global Human Rights Clinic. 10. available at:
https://chicagounbound.uchicago.edu/ihrc/10, visited on 27/03/2023.
[20] Grace Meton and Melanie Israel, ‘How surrogacy harms women children’ The Heritage
Foundation, available at: https://www.heritage.org/marriage-and-family/commentary/how-
surrogacy-harms-women-and-children, visited at 2/04/2023.
a. http://www.jstor.org/stable/1095849, visited on 1/04/2023.
[21] International Covenant on Civil and Political Rights, 1966.
[22] International Covenant on Economic, Social and Cultural rights, 1966.
[23] Jaqualine A. Priest, The Report of the Warnock Committee on Human Fertilization and
Embryology, Modern Law Review, Vol.48,No.1 (Jan 1985 ),73-85 at 83, available at:
[24] Jhon Fernquest, ‘Commercial Surrogacy’, 5th may 2011, available at:
ttps://www.bangkokpost.com/learning/advanced/225571/commercial-surrogacy,visited on
21/12/2021.
[25] Katherine B. Lieber, ‘Selling the Womb: Can the Feminist Critique of Surrogacy be
Answered?, 68 Indiana Law Journal, 205(1992).
[26] Lily Johnson, ‘Commercial Surrogacy is the Sale of Children? An Argument that commercial
surrogacy does not violate International Treaties’ Washington International Law Journal Vol.
28 No. 3, pg 701-726, at pg 706