Child Rights and Surrogacy: Navigating Ethical, Legal, and

Social Dimensions

a
Research Proposal
for
Partial Fulfillment
of
Doctor of Philosophy

Under Guidance of:- Submitted By

Dr. Divya Khurana Divya Mittal

Associate Professor Regd No. CTPET 4134
Department of Law Department of Law
C T University C T University
 Department of Law,
C T University, Ludhiana
2023

1.1. Introduction

Motherhood has significantly influenced social dynamics. It is mandatory to be a mother,

specifically to bear sons. Original sin in the Garden of Eden was attributed to women. She
consumed the forbidden fruit, tempted Adam, and has endured the consequences ever
since. Numerous women may perceive the summary of their relationship with their
spouses as an accurate reflection of their status over time.1

Women bear children, serve as mothers and wives; they engage in cooking, mending,
sewing, and laundering; they attend to men and are subordinate to male authority; they are
predominantly excluded from prestigious occupations and positions of power. According
to stigma theory, childless women diverge from the conventional and normative life
trajectory and are significantly discredited.

When a woman exceeds the age of 30, remains single, and is without children, others often
inquire about her reasons and what she is anticipating. Women without children are often
regarded with inherent skepticism. Consequently, motherhood is equated with
womanhood, and the inability to attain motherhood signifies an incomplete realization of
the status of ‘woman’. The aspiration for motherhood is both inevitable and nearly
universal.

Historically and traditionally, motherhood has been perceived as inherent for women. It is
imperative to be a mother, specifically to bear sons. In a polygamous family, the mother of
the children experienced social superiority. Infertility, defined as the inability to conceive,
impacts both men and women of reproductive age globally. Infertility is highly
stigmatized in India, establishing the basis for. Numerous exclusions from social and
political spheres, particularly for women.

What constitutes the fundamental perception emerging from the primary aspect of this
issue is that it is often women who bear the significant responsibilities associated with

1
Gupta, Jyosna Agnihotri,New Reproductive Technologies.Women’s Health and Autonomy,2000 p.90.
childlessness. It will be regarded as a dreaded condition. Parenthood elevates social status
and bestows prestige.2

Women bear children, serve as mothers and wives; they engage in cooking, mending,
sewing, and laundering; they attend to men and are subordinate to male authority; they are
predominantly marginalized from prestigious professions and positions of power.
According to stigma theory, childless women diverge from the conventional and expected
life trajectory and are significantly discredited. When a woman exceeds the age of 30,
remains single, and is without children, others often inquire about her reasons and what
she is anticipating. Women without children are often regarded with inherent skepticism.
Consequently, motherhood is equated with womanhood, and the inability to attain
motherhood signifies an incomplete realization of the status of 'woman.' The aspiration for
motherhood is both inevitable and nearly universal. Historically and traditionally,
motherhood has been perceived as inherent for women. It is mandatory to be a mother,
specifically of sons.

In a polygamous family, the mother of the children experienced social superiority.

Infertility, defined as the inability to conceive, impacts both men and women of
reproductive age globally. Infertility is highly stigmatized in India, establishing the
foundation for. Numerous exclusions from social and political spheres, particularly for
women. What constitutes the fundamental perception emerging from the primary aspect is
that it is often women who bear the significant burdens of childlessness. It will be
perceived as a dreaded condition. Parenthood elevates status and bestows prestige.3

1.2. Surrogacy: A Conceptual Understanding

It’s been noted that the infertile couple's childlessness is regarded as a curse. Many rituals
and practices in an ancient society became part of the society simply because of the need
to have a biologically owned infant.

Surrogacy is a reproductive plan in which a surrogate mother carries and gives birth to a
child for another person or couple—the intended parents. It is a contract in which the
surrogate agrees to pregnancy and delivery on behalf of the intended parents, who then
become the child's legal parents after birth. The two primary kinds are traditional
surrogacy, in which the surrogate uses her egg, and gestational surrogacy, in which an egg
2
Gupta, Jyosna Agnihotri, New Reproductive Technologies. Women’s Health and Autonomy, 2000
3
Available at: http://www.ijme.in1170032/ (last accessed on: 20th July 2023)
is supplied by the intended parent or an egg donor and the surrogate carries the pregnancy.
Surrogate motherhood can be achieved through various methods.

The concept of surrogacy, commonly referred to as 'Womb on Rent,' is not new; it has
existed in various forms across all societies globally. Surrogacy has gained popularity due
to the conflicting interests associated with this practice, yet it faces criticism globally for
its commercialization. It raises a unique set of legal, ethical, and human rights challenges,
particularly concerning the protection of the rights of surrogate mothers and children born
through surrogacy.

The fundamental principles of international human rights provide a valuable framework

for examining and addressing these challenges. International human rights instruments,
such as the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights, and the Convention on the Rights of the Child, contain provisions
that are relevant to the rights of surrogate mothers and children involved in surrogacy
arrangements.4

The International Human Rights Framework aims to provide the key instruments and
provisions that are pertinent to the rights of surrogate mothers and children. It will then
delve into the specific rights of surrogate mothers, including the right to privacy, bodily
autonomy, and freedom from exploitation, as well as the right to fair remuneration, work,
and social security. With the developments and judicial interpretations, rights of children
born through surrogacy, examining their rights to identity, nationality, family, and access
to information about their genetic origins ae being explored.5

Along with the ethical consequences connected with commercial surrogacy, the possible
conflicts between the interests of intended parents, surrogate mothers, and children will be
examined. Numerous practices are there which illustrate the practical implications of
surrogacy and human rights.6 Such aims are to elucidate the complexities and dilemmas
faced in protecting the rights of surrogate mothers and children. While offering hope to

4
Adam Marshall, Choices for a Child: An Ethical and Legal Analysis of a Failed Surrogate Birth Contract ‖,
30 U. Rich. L. Rev. 275 (1995).
5
K. Svitnev, ― Legal Control of Surrogacy – International Perspectives‖, in Joseph G. Schenker (ed.),
Ethical
6
Dilemmas in Assisted Reproductive Technologies, Walter de Gruyter Gmbh & Co., Germany (2011),
p.149.
those facing infertility and enabling diverse family structures, surrogacy also raises
intricate ethical, legal, and emotional questions, particularly concerning child rights. 7

Surrogacy and child rights share different relationships that negotiate the balance between
the desires of intended parents, the welfare of surrogate mothers, and the basic rights of
children born via surrogacy. Surrogacy transcends traditional notions of family creation,
involving surrogate mothers who carry and give birth to children on behalf of intended
parents. As technology advances and societal values evolve, the implications of surrogacy
on the rights of the child become increasingly profound. It is crucial to examine these
dynamics through an ethical lens that acknowledges the complexity of individual choices,
the broader social context, and the universal principles of child rights enshrined in
international conventions. Various instances providing for the diversity of facets of
surrogacy, ranging from its motivations and methodologies to the intricate interplay of
child rights navigates the ethical considerations surrounding commercialization and
exploitation, scrutinize the legal frameworks governing surrogacy across different
jurisdictions, and delve into the potential emotional and psychological impacts on the
children born through these arrangements.

By comprehensively examining these aspects, we seek to shed light on how societies can
navigate the uncharted waters of surrogacy while safeguarding the rights and best interests
of the children involved. India now has regulations to illuminate the benefits of surrogacy
and to prevent its unethical commercialization and hazards.

Indian Council for Medical Research has given guidelines in 2002, approved by the
government in 2005, regulating Assisted Reproductive Technology procedures (herein
referred to as “ART”). The new law related to Surrogacy aims to “control” and
“supervise” ART facilities and surrogacy, as well as to “curb” unethical behaviors,
including sex selection and surrogate mother exploitation, by enforcing monetary fines
and imprisonment terms for violators.

Chapter 1 of the study provides the introduction to surrogacy and outlines its
significance. It outlines the scope of the research along with its research questions and the
interrelation of each chapter with the central theme. Chapter 2 talks about the evolution of
surrogacy and surrogate mothers' rights. It also talks about how the child welfare laws
have changed in India and is aimed at protecting the children’s rights. Chapter 3
7
Scott B. Rae, “The Ethics of Commercial Surrogate Motherhood‟ (I 994)
compares the surrogacy legislation in India and the United States. It illustrates the
different approaches to surrogacy by the two countries. Chapter 4 outlines the legal
regulations that are implemented to safeguard the interest and identity of the surrogate
mother and their offsprings guaranteeing their rights. Chapter 5 talks about how society
considers the children born from surrogacy and how to bring societal acceptance to the
same. Chapter 6 concludes the research by listing the major findings and talking about
legislative changes that should be brought in India to support both surrogate mothers and
their offspring.

1.3. Definition & Meaning of Surrogacy

Definition of surrogacy is significant for various reasons, firstly under different legal
jurisdictions surrogacy is differently conceptualized while in some nations it is a mere
arrangement in some jurisdiction it is a contract and in some it is only a medical treatment.
Accordingly, it is conceptualized as legal or illegal or permitted or prohibited in different
countries. The definition also identifies the relevant or particular features of the surrogacy,
the permitted and practiced forms of surrogacy, the manner of conduct of surrogacy, the
stakeholders involved in different legal jurisdiction. The definition also reflects the extent
of existing permissible laws, policies at a given time in a given country.

Meaning of Surrogacy - The word surrogacy is derived from the latin word “surrogatus”
which is past participle of “surrogare” meaning a substitute, that is, a person appointed to
act in the place of another. Thus, a surrogate mother is a woman who bears a child on
behalf of another woman, either from her own egg or from the implantation in her womb
of a fertilized egg from other woman. According to the Black’s Law Dictionary, surrogacy
means the process of carrying and delivering a child for another person8

1.4. Types of Surrogacy

Surrogacy is a method of assisted reproduction where a woman carries and gives birth to a
baby for another person or couple. There are several types of surrogacies, each with its
own legal, ethical, and emotional considerations. The main types of surrogacies are:

● Traditional Surrogacy

● Gestational Surrogacy

8
BLACK'S LAW DICTIONARY 1582 (9th ed. 2009).
 ● Commercial Surrogacy

● Altruistic Surrogacy

● Agency Surrogacy

● Independent Surrogacy

● Identified Surrogacy

1.5. Why is Surrogacy introduced?

Surrogacy is generally defined as an arrangement in which the surrogate or birth mother

agrees to bear a child and permanently hand over the responsibility for the rearing of that
child to another person or couple, referred to as the intending parents.9

In most of the surrogacy arrangements the intended parents contribute the genetic material
and the child is carried by the surrogate. 10 In certain cases the surrogate woman may
contribute the genetic material and in very rare situations both the egg and sperm may be
taken from donors and the resultant embryo is implanted in the surrogate.11

Surrogacy arrangements can be formal on the basis of a contract or can be informal based
on mere understanding between the parties. Further, surrogacy arrangements can be
altruistic or commercial. An altruistic surrogacy is one in which the birth mother does not
receive any financial or material gain from the arrangement. In contrast, commercial
surrogacy is where the birth mother receives a fee or some other monetary gain in return
for acting as the surrogate and may also involve the presence of a broker who receives a
fee for arranging the surrogacy.12

9
Catherine Brown, ―The Queensland Investigation into the Decriminalization of Altruistic Surrogacy‖, 29
(2) Queensland Lawyer, 78-83 (2008).
10
Paula M. Barbaruolo, ―The Public Policy Considerations of Surrogate Motherhood Contracts: An
Analysis of Three Jurisdictions‖, 3 Alb. L.J. Sci. & Tech. 39 (1993), at p.41.
11
Andrew Bainham & Martin Richards, What is a Parent?: A Socio-Legal Analysis, Hart Publishing,
Oxford, U.K. (1999), p.125.
12
Jennifer Aimee Sandoval, ―Labor Pains: An Exploration of the Complex Roles of Identity, the Body, and
Policy in Surrogacy Discourses in India‖, Dissertation submitted in partial fulfillment of the requirements for
the Degree of Doctor of Philosophy Communication, The University of New Mexico, Albuquerque, New
Mexico, July, (2010), pp.4-5.
Surrogacy though not in the present form has been practiced since ancient times and
instances of surrogacy can be found throughout history where a family member or servant
may have stepped in for a woman who could not become pregnant.13

The advancements in technology have made this method more popular and convenient for
the parties. Surrogacy has not only brought with it relief for the infertile married couple,
but also provided an opportunity for a wider group of socially infertile people to beget a
child.14Earlier, childless couples alone sought the help of surrogacy, that too during the
prime child bearing years. But now single and even post-menopausal women who want to
have children seek the help of this method. 15 In the past, surrogacy arrangements were
generally confined to kith and kin of close relatives, family, or friends, usually as an
altruistic deed. But, with the introduction of financial arrangements in the process,
surrogacy has extended its network beyond family, community, state, and even across the
country.16

Surrogacy has also been criticized on the ground that, it violates the human rights and
dignity of surrogate women and it would lead to commodification of women, exploitation,
prostitution and slavery.17 Further, it is said that surrogacy would have an adverse impact
on the rights of the child and lead to baby selling, sex selection and creation of designer
babies. However, the proponents of surrogacy argue that right to procreation is a basic
human right and it includes the right to procreate with the help of another. 18 So also every
individual has the right to benefit from the developments in science and technology.
Further, every woman has a right to reproductive autonomy which includes the right to act
as a surrogate for another. Therefore, any restriction on the practice of surrogacy would
violate the basic human rights of intended parents as well as the surrogate woman.19

13
Ibid.
14
Lisa Fong, ―Balancing Rights and Interests in Access to Infertility Treatment‖, A.U. L.R. 9 (4), 1181-
1207 (2003).
15
Marsha Garrison, ―Law Making for Baby Making: An Interpretative Approach to Legal Parentage‖, 113
Harvard Law Review 837 (2000), at p.838.
16
Centre for Social Research (CSR), Surrogate Motherhood- Ethical or Commercial, p.3, report released in
the year 2012. Available at :www.womenleadership.in/Csr/SurrogacyReport.pdf (Last Visited on 10th July
2023).
17
Sara K. Alexander, ―Who is Georgia‘s Mother? Gestational Surrogacy: A Formulation for Georgia‘s
Legislature‖, 38 Georgia Law Review, 395 (2003-2004), at p.400.
18
Martha A. Field, ―Surrogacy Contracts-Gestational and Traditional: The Argument for Non-
Enforcement‖, 31 Washburn Law Journal, 1(1991-1992), at p.7; Richard A. Posner, ―The Ethics and
Economics of Enforcing Contracts of Surrogate Motherhood‖, 5 J. Contemp. Health L. &Polly 21 (1989).
19
Helen Holmes & Joan Helmich, Issues in Reproductive Technology: An Anthology, New York University
Press, New York (2004), p.322.
India is rapidly developing as a major destination for surrogacy practices. This is due to
the fact that, India offers such services with modern technologies and medical expertise at
low-cost, along with a permissive regulatory climate. Further, the easy availability of
surrogate women at low cost compared to other countries has also contributed to the
country‘s rise in popularity as a top destination for individuals/couples seeking surrogacy
services.20 The Law Commission of India in its report stated that, the usual fee for
surrogacy arrangements is around $25,000 to $30,000 in India which is around 1/3rd of
that in developed countries like the USA.21 According to a study report given by Centre for
Social Research (CSR), New Delhi in the year 2012, the fees for surrogates are estimated
to range from $2,500 to $7,000 and the total costs for surrogacy arrangements can be
anything between $10,000 and $35,000. Therefore, it is considered less than what the
intended parents will have to pay in the United States, where rates fluctuate between
$59,000 and $80,000. Thus, the strongest incentive for foreigners to travel to India is most
likely to be the relatively low costs involved in the process. This has made India a
preferred destination for foreign couples who look for a cost-effective treatment for
infertility and thus a whole branch of medical tourism has flourished on the surrogacy
practice.

Various Indian origin registered and authorized Clinics provides the legitimate surrogacy
practices in consistent with the Surrogacy (Regulation) Act 2021. The expenses associated
with surrogacy in India vary, ranging from Rs 15,00,000 to Rs 20,00,000. The cost is
influenced by factors such as the experience of the surrogacy doctor, success rates, and the
location of the surrogacy clinic. This encompasses various components like IVF drugs,
consultations, investigations, ultrasounds, oocyte pick-up, IVF lab, embryology, embryo
transfer, and sperm freezing for one year, along with compensation for the egg donor by
the IVF doctor.22

Gestational surrogacy, considered one of the most effective treatments, is preferred over
alternative surrogacy methods. The IVF technique plays a crucial role, as gestational
surrogacy involves collecting eggs and sperm from the female and male partners,
20
Dr. Suman Kumar Dawn & Swati Pal, ―Medical Tourism in India: Issues, Opportunities and Designing
Strategies for Growth and Development‖, ZENITH - International Journal of Multidisciplinary Research,
Vol.1, Issue 3, 185, July (2011).
21
Law Commission of India, ―Need for Legislation to Regulate Assisted Reproductive Technology Clinics
as well as Rights and Obligations of Parties to a Surrogacy, Report No. 228, August 2009, at p.11.
22
Surrogacy Cost in India, available at : https://www.vinsfertility.com/surrogacy-cost/surrogacy-cost-in-
india-surrogate-mother-cost-in-india-low-cost-surrogacy-centres-in-india/, Last Visited on: 27 th December
2023.
respectively, and combining them for natural fertilization. The overall expenses for
gestational surrogacy can range from Rs. 10,00,000 to Rs. 17,00,000 if the couple is able
to donate their eggs or provide frozen fertilized embryos.These costs encompass fees for
the agency, gestational carrier, attorney, and social worker. Additionally, legal and
medical expenses are included, along with funds to cover the carrier's maternity wardrobe,
medicines, and expenses related to consumables. The overall sum also covers the costs
associated with harvesting the egg or embryo.23

1.6. Criteria for opting Surrogacy as per Surrogacy (Regulation) Act, 2021
 The prospective couple must be legally wedded and fulfill specific age
requirements.
 The woman involved should be within the age range of 23 to 50, while the man
should be between 26 and 55 years old.
 Additionally, the couple should not have any biological children from previous
marriages.
 The female partner must have a medical reason for seeking surrogacy, supported
by valid medical documentation.
 A willing surrogate mother must be married and have at least one child of her own.
 Unmarried women may also be eligible as intended parents if they are between 35
and 45 years old and are either married, divorced, or widowed. However, if they
have a surviving child from a previous marriage, they are disqualified from
surrogacy.
 Single men and same-sex couples are not allowed to enter into surrogacy
arrangements in India.
 It is mandatory for the intended mother to have a medical indication for surrogacy.

1.7. Surrogacy as a Right to Procreate

23
Ibid.
In almost all civilizations, the marriage serves as the basic institution forreproduction,
bearing and raising of children.24 Procreation of children is the primarybiological function
of a marriage and it is the family which ensures the continuity ofhuman race. The
assumption is that conjugal relations should lead to the birth ofchildren and if it is not
done, the continuity of society would cease to exist.25

The reasons for the desire to have a child are many, viz. to love and to be lovedby it, to
educate and convey personal ideals and values, to get a sense of fulfillmentand to
contribute a part of oneself to the future generation. This significance ofchildren in a
marriage and for a family is emphasized and elaborated in variousreligious scriptures and
texts.

Thus, the procreation of children is an inbuilt element ofmarriage and family and this
concept is accepted universally all over the world. Withthe emergence and development of
the concept of human rights, this basic need of ahuman being to have children has been
recognized as fundamental human right andincorporated as right to procreation. The
modern human rights documents alsorecognize the significance of children and emphasize
on the protection of right toprocreation as a basic human right. It also elucidates
therecognition of the need for a child as a basic human right and its incorporation asright
to procreation at international and national level. Further it identifies infertilityas the major
barrier which prevents an individual from enjoying the right toprocreation and the various
measures available to overcome such barriers.26

24
Minz, ―Family‖, in Dr. Draper (ed.), World Book Multimedia Encyclopedia, WorldBook, Inc, Chicago
(2002).
25
S. L. Joshi and P.C. Jain, Rural Sociology, Rawat Publication, Jaipur (2002), pp.188-193.
26
Indu S. Nair, ―Rights of the Child: Challenges for Law in the New Era of Technology‖, [2003]C.U.L.R.
101.
Image Source:- http://humupd.oxfordjournals.org/content/expansion.html

1.9. Religious Standpoint

1. Children in Hindu Religious Philosophy

Hindu religion is one of the oldest religions in the world and the prominentreligion in
India. Various scriptures and texts of the Hindu religion explicitly mentionthe significance
and need of a child for the parents, society and family. Hindusbelieve that children are
gifts from God and are products of the previous Karma of anindividual. It is presumed that
children are related to an individual in their past livesor are their close friends. According
to Manu, a man recreates himself through hisown children. Since Hinduism firmly
believes in rebirth, it views the life of anindividual from a wider perspective as a part of a
great cosmic cycle thatencompasses not just the present life but many other lives that
preceded it as well asthat may succeed it. Therefore, Hindus have the belief that their
relationship repeatthemselves and that their life is intricately connected with many others
who share thesame destiny.27

The desire for a child and particularly a male child is highlighted in almost allthe
scriptures. The Vedas and the ancient writers like Yajnavalkya and Manu refer tovarious
methods for begetting a child and specially a male child. Most of thesemethods were very
popular and practiced in ancient India and also permitted by theancient laws. It is pertinent
to point out here that these methods considered not onlythe begetting of a child in a
conjugal relationship but also obtaining a child throughnon-conjugal relationships and
other means. Some of these methods can beconsidered as the precursors of the modern
artificial human reproductivetechnologies. For example,Aurasa was said to be a legitimate
child begotten by man with his own lawfully wedded wife. Kshetraja meanta son by
another man appointedby husband. Gudhaja was a son by another unknown man, brought
forth by wifesecretly i.e., unknown adultery.28

2. Child in Christianity

Christian religion has given utmost importance to children and considers themas symbol
of God. It is believed that one day Jesus took a young child on His lap andsaid, whoever
humbles himself like this child is the greatest in the kingdom ofHeaven. And whoever
welcomes a little child like this in My name welcomes Me.29

This reveals the high value which God has given to a child. The First Commandmentgiven
to man was to have children. After the flood, God blessed Noah and his sonsand said unto
them, Be fruitful and multiply and replenish the earth. 30Psalm says,As arrows are in the
hand of a mighty man, so are children of the youth. Happy isthe man that hath his quiver
full of them‖. Thus, Christianity also recognizes the needand importance of children. In the
New Testament, St. Paul advocated peopleremaining single during the persecution that
would come to the church, but did notmake being single or not having children a
requirement.31

27
Eric Blyth & Ruth Landau, Faith and Fertility: Attitudes Towards Reproductive Practices in Different
Religions from Ancient to Modern, Jessica Kingsly Publications, U.S.A. (2009), p.112.
28
Nigam, M., Nigam, R., Chaturvedi, R., & Jain, A., ―Ethical and Legal Aspects of Artificial Reproductive
Techniques Including Surrogacy‖, in Anil Aggrawal’s Internet Journal of Forensic Medicine and
Toxicology, Vol. 12, No. 1 (January - June 2011).
29
The Importance of a Child‖, Mennonite Brethren Herald, Volume 40, No. 12 (2001).
30
Lester L. Grabbe, Mark G. Brett, Genesis: Procreation and Politics of Identity, Routledge, U.S.A. (2000),
p.44.
31
Ibid.
Similar to other cultures,religions and social classes, Christianity also recognizes the
desire for a genetic heiras an instinctive and cognitive desire of an individual. At the same
time it also accepts

the fact that some men may not be able to have children due to various reasons andhence
mentions different methods for bringing forth a child. For example, in theBible, in a case
where a married man dies without having children, his brother ornearest relative has an
obligation to marry the widow and the oldest son is namedafter the deceased. If the brother
- in - law refuses to marry the woman he is obligedto go through a humiliating public
ceremony because of his unwillingness to establishhis brother‘s heirloom.32

3. Child in Islamic Religion

As per the Islamic teachings, children are a gift and a blessing from Allah the almighty.
Some of the gifts that Allah has bestowed upon mankind are mentioned in the following
verse, ―And Allah has made for you spouses of your own kind and has made for you,
from your wives, sons and grandsons, and has bestowed upon you good provisions. Allah
also said, ―Wealth and children are the adornment of the lifeof this world.33

Begetting children is considered to be of utmost importance andfundamental to the

existence of community in Islam and therefore it forbids the actsof celibacy, monasticism
and castration. This view is clear from the wordings of theProphet, when he told those
companions who were considering ascetic forms of life,I pray and I sleep; I fast and I
break my fast; and I marry women. Whoever turnsaway from my way of life is not from
me.34Thus, the Prophet not only encouragedmarriage but he also encouraged marrying
those women who are child-bearing. Hestated, Marry the loving, child-bearing women for
I shall have the largest numbersamong the prophets on the day of Resurrection.35

The Prophet said that, ―Worthy offspringare a bunch of sweet-smelling flowers which
God has distributed amongst hisservants. Worthy children are a bunch of sweet-smelling
flowers from the Heavenlyflowers.36

32
The Tradition of Reproduction‖, 37 Arizona Law Review, No.2 (1995), at p.453.
33
Muhammad Saed Abdul-Rahman, The Meaning and Explanation of the Glorious Qur’an, Vol 5, M.S.A.
Publications Limited, United Kingdom (2nd edn.- 2009), p.406.
34
Badr Azimabadi, Prophetic Way of Treatment, Adam Publishers, New Delhi (2009), p.111.
35
Ergun Mehmet Caner, Voices Behind the Veil:The World of Islam Through the Eyes of Women, Kregel
Publications, Inc., U.S.A. (2003), p.162.
36
Ms. Lisa Zaynab Morgan & Dr. Ali Periravi, (Translators), Husayn Ansariyan, The Islamic Family
Structure, Ansariyan Publications, Iran (2000), p.190.
The position of offspring is so important in life that Abraham requestedfor children from
God in his old age and his prayer was answered.37 Thus in Islam achild is a great blessing,
a source of goodness, nobleness and benefit in this world.

1.10. Surrogacy And Child Rights

“Right” encompasses entitlement, obligation, and aspiration. Every child possesses

specific entitlements, which, due to age limitations, are exercised through familial,
societal, and state channels. Unfortunately, these entities are sometimes culpable for
infringing upon children's rights. When referring to the rights of a child, these encompass
the entitlements to protection, care, association with both biological parents, identity, and
basic necessities like food, healthcare, state-funded education, and developmental laws.
Despite the existence of numerous legislations, conventions, enforcement agencies, and
mechanisms safeguarding children's rights, it was the UN Convention on the Rights of the
Child (UNCRC) in 1989 that marked a significant milestone. This global, binding
agreement among nations played a crucial role in safeguarding children's interests by
recognizing them as subjects of rights.

 International position

Declaration of the Rights of the Child (DRC), 1924, provided protection of

children’s rights under International Law and can be termed as first Declaration of
the Rights of the Child adopted by the League of Nations in 1924. The Declaration
provided five principles highlighting the social and economic entitlements of
children as well as addressing the notion that “mankind owes to the child the best it
has to give,” and thereby laying the foundation for future international standards to
be adopted in the field of children’s rights.38

UN Declaration on the Rights of the Child ( UNDRC), 1959, a declaration on

the Rights of the Child consisting of 10 principles and reiterating the pledge that
“mankind owes to the child the best it has to give”. Its preamble also state that
children need “special safeguards and care, including appropriate legal protection,
before and after birth”. It also places a specific duty upon voluntary organizations
and local authorities to strive for the observance for these rights.

37
Ibid.
38
Geraldine Van Bueren, The International Law on the Rights of the child 284 (Martinus Nijhoff Publishers,
1995).
 UN Convention on the Rights of the Child (UNCRC), 1989, provided ‘Child’- as
“every human being below the age of eighteen years unless, under the law
applicable to the child, majority is attained earlier.” Further, under the Convention,
all States have agreed to take adequate measures in order to achieve the rights
contained in the Convention. In-fact the Convention on the Rights of the Child
gives children their basic civil, social, economic, cultural and political human
rights which enable children to achieve their full potential.

 Regional Position

African Charter on the Rights and Welfare of the Child (ACRWC), 1990,
presents the standards of non-separation and the wellbeing of the youngster
notwithstanding the right of the kids to a name and identity as well as to
opportunity of articulation, affiliation and serene gathering; thought, religion, and
still, small voice, security, training, relaxation, diversion and social exercises,
Extraordinary proportions of assurance for disabled kids their physical, mental, and
profound wellbeing, Security of Youngsters against all types of monetary double-
dealing and from performing work liable to be unsafe and against all types of
torment, abuse, and misuse hurtful social and social practices, all types of sexual
abuse or misuse, the utilization of opiates and unlawful medications and
kidnapping, deal, dealing, and use in asking.

The European Convention on the Exercise of Children’s Rights (ECECR),

1996, states that children should have the opportunity to exercise their rights,
particularly in family proceedings affecting them; they should be provided with
relevant information (information appropriate to the child’s age and understanding,
given to enable the child to exercise his or her rights fully, unless contrary to the
welfare of the child) and their views should be given “due weight”; and, “where
necessary”, States as well as parents, should engage in the protection and
promotion of such rights and best interests.

European Convention on the Adoption of Children (ECAC), 1967, applies to the

legaladoption of children under the age of eighteen, not currently or previously
married, andnot deemed in law to have come of age earlier. 39 Its provisions are
onlyminimum standards; States Parties may adopt provisions more favorable to the
39
Article 3, European Convention on the Adoption of Children (ECAC), 1967.
 adoptedchild.40 The ECAC ensures that national child protection laws apply not
only to adoptions of children from the States Parties, but also to those of children
from otherStates.

The Hague Convention on Jurisdiction, Applicable Law, Recognition,

Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children, 1996, boundless, covering not simply
the physical insurance of the kids yet additionally matters, for example, parental
responsibility, contact, home, youngsters' property, guardianship, temporary
parents and then some." "That the best interests of the child are to be a primary
consideration" is stated in the Convention's Preamble. Further as per Article 2, the
show is relevant "to kids from the moment of their introduction to the world until
they arrive at the age of 18 years."

 Interplay Between Surrogacy and Child Rights

Fluctuated legitimate methodologies by various nations towards surrogacy have led to a

number of lawful issues which infringe upon the fundamental privileges of substitute
youngsters as they end up being obvious objectives. For example, nations including
France, Italy, Germany furthermore, China, Switzerland, Arizona(U.S.) boycott surrogacy
game plans through and through, regardless of whether business. Only altruistic surrogacy
is permitted in other nations, such as the United Kingdom, Australia, New Zealand, Israel,
and Holland. Not very many nations. like India, Ukraine, Russia and a few American
states (remarkable California and Florida) permit business surrogacy game plans where
they are legitimately enforceable furthermore, these nations have become objections for
couples looking for youngsters through surrogacy.

Speaking of India, it has undoubtedly emerged as one of the most popular destination for
commercial surrogacy especially due to low costs involved in such procedures when
compared to other countries. However, in the absence of any specific law dealing with
surrogacy in India or globally, various complicated social and legal issues affecting the
rights and interests of children born from such arrangements arises.

Various issues are present towards Surrogate Child’s Right such as:-

40
Article 16, European Convention on the Adoption of Children (ECAC), 1967.
 i. The status and identity of the surrogate child after birth and in cases where the
parents get divorced before/after the birth of the child.
ii. The right to love and affection after the birth of the surrogate child, the parent
gets a biological/normal child, there is a possibility of the child not getting the
same affection or care from the parents.
iii. If the surrogate mother or the donor is suffering from some genetic disease
which causes a disability or chronic illness in the child and which did not come
to be detected in the process of surrogacy, what shall be the right of the
abnormal or disable child born from surrogacy, etc.

Apart from the above outlined issues, rights granted to children across the globe under the
UNCRC, though not specific to children born via surrogacy, gain importance in the
present context. UNCRC recognizes certain rights of the child from the moment he is born
and though the said convention does not directly address the issue of surrogacy, at the
same time, it does not discriminate between children born through the natural process or
surrogacy. Some of the rights, relevant in the present context, may be analyzed as under:

a) A child’s right to know and right to family care.

b) A child’s right not to be separated from his or her parents.
c) A child’s right to preserve his or her identity.
d) Right to physical and psychological health i.e., the right to live a healthy life free
from manmade abnormalities.
e) Right to parentage and nationality.

Article 7.1 of the UNCRC which provides that “the child shall be registered immediately
upon birth and from birth itself, shall have a right to a name, right to acquire a nationality
and, as far as possible, the right to know and be cared for by his or her parents.”41

Article 15 of the Universal Declaration of Human Rights (UDHR) provides that “everyone
has the right to a nationality” and that “no one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.” Enshrining citizenship and the
right to be free from arbitrary deprivation of citizenship as human rights, Article 15 of the
UDHR establishes the bedrock of legal relationship between individuals and States.
Further, Article 7 of the UNCRC also provides “the child shall be registered immediately

41
Article 7.1, United Nations Convention on the Rights of the Child, 1992.
upon birth and from birth itself, shall have a right to a name, right to acquire a nationality
and, as far as possible, the right to know and be cared for by his or her parents.”42

However, children born via surrogacy often face an uncertain status as regards their
parentage and nationality. Conflicting laws on parentage, citizenship and surrogacy
indicate that a child can end up with no legal parents or Nationality. Since a child’s
citizenship is usually based on parentage and place of birth, the respective Nation’s
understanding/interpretation of parenthood has wide implications on a child’s nationality
which can be problematic for the child45 and the situation may worsen when the
commissioning parents hail from Nations which ban surrogacy, commercial or otherwise. 43

A number of cases have arisen as a result of commissioning parents being unable to

establish their legal parenthood and their child’s national identity. Some cases are being
discussed hereunder:

 In Baby Manji Case,44 a baby called Manji was born to an Indian surrogate
mother and the commissioning parents belonged to Japan. The Japanese couple
had used the husband’s (Mr. Yamada’s) sperm and an Indian donated egg to
create the embryo.
Shortly before Manji’s birth, Mrs. and Mr. Yamada divorced each other and
Mrs. Yamada made no claim over the baby. Following the directions of the
Chief Registrar of Anand Municipal Office, Gujarat, a birth certificate was
applied for and issued with only Mr. Yamada’s name on it. Japanese authorities
told Mr. Yamada that he would be able to bring Manji to Japan only by
adopting Manji pursuant to both Japanese and Indian laws. While Mr. Yamada
attempted to obtain the relevant documents to adopt Manji, an NGO called
Satya filed a petition before the Rajasthan high Court seeking to prevent Manji
from being taken out of India. Satya challenged the legality of commercial
surrogacy and accused the clinic where Manji was born of illegal trade in
infants. It was alleged that the absence of surrogacy law in India meant that no
one could claim to be the parent of Manji, including Mr. Yamada. The
42
Ishita Chatterjee,“ An Insight of the Conflicting Interests of Surrogacy Arrangements in India” 7 Mad.LJ
72-80 (2012).
43
Professor Mark Henaghan, “International Surrogacy Trends: How Family Law is Coping” 7(3) Australian
Journal of Adoption 118-178 (2012).
44
Baby Manji Yamada v. Union of India (2008)13 SCC 518.
Rajasthan High Court required Manji to be brought to them within four weeks.
In response, Mr. Yamada’s mother filed a writ petition on Manji’s behalf
before the Supreme Court of India. The Supreme Court granted temporary
custody of Manji to Mr. Yamada and in an order dated 29th September 2008,
while disposing of the case, it stated that the Commission formed under the
Protection of Children Right Act, 2005 was the appropriate authority to hear
the complaints of the type made by Satya and on that basis the supreme Court
disposed of Satya’s proceedings pending before the Rajasthan high Court.
With respect to commercial surrogacy, the Court effectively validated the
procedure in India saying “Commercial surrogacy is legal in several countries
including 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.” After the Supreme Court’s judgment
was issued, the Jaipur passport office gave special dispensation and issued a
“certificate of identity” to Manji. Thereafter, the Japanese embassy in New
Delhi issued her a one-year visa on humanitarian grounds, and Manji arrived in
Japan with her grandmother on November 2, 2008. However, this still did not
resolve the question of her nationality and the law remained unclear as to
whether a child born to an Indian surrogate is a citizen of India or not. Though
the case was successful enough to receive national and internationalmedia
attention and bringing to light various issues relating to cross border surrogacy
contracts in the lack of any regulation governing the same. One such issue
being statelessness of the child born through surrogacy arrangement and
violation of his citizenship right which has been granted to every person by
virtue of Article 15 of the UDHR and Article 7 of the UNCRC. However, it did
not take long for Indian Courts to come across with this issue again in another
surrogacy case, this time a case involving German commissioning parents.48 A
German couple, Mrs. and Mr. Balaz, sought to commission a surrogate
pregnancy in India using the sperms of Mr. Balaz’s and a donated egg.
Resultantly, twins namely Nikolas and Leonard were born to the couple in
India in the year 2008. However, they had to remain in India for two years due
to their statelessness. While the twins came to be originally registered and
 issued with Indian birth certificates with Balaz’s as their parents, litigation
ensued when the German Authorities refused to grant recognition to the birth
Certificates for grantingGerman nationality due to surrogacy being illegal and
punishable in Germany.45
TheBalazs had to resort to the Courts in order to seek Indian passports for the
twins. Alower Court refused to recognize the children as Indian because they
lacked an Indian‘parent’. The authority that had issued the birth certificates
then recalled them andreplaced Mrs. Balaz with the Indian gestational
surrogate as the children’s ‘mother’, while Mr. Balaz remained identified as the
‘father’. Passport authorities then allowedthe application for two Indian
passports. The twins were initially issued Indianpassports reflecting Jan Balaz
as the father and the surrogate mother’s name as themother.
However, vide letter dated 6 may 2008, the Ministry of External
Affairs,Government of India, requested for surrender of the Indian passports
until the HighCourt handed down a final decision. Balaz surrendered the Indian
passports and thenmoved the Gujarat High Court to get the passports back in
order to be able to bringthe twins to Germany. Balaz alleged that the denial of
the passports violated Article21 of the Constitution of India. 46 However, the
stand of the Regional Passport Officeat Ahmedabad was that the surrogate
mother could not be treated as the mother of thechild and that children born
from surrogacy in India cannot be treated as Indiancitizens within the meaning
of Section 3 of the Citizenship Act, 1955. Therefore, thechildren, as non-Indian
citizens, could not apply for Indian passports under section6(2)(a) of the
Passport Act, 1967. In contrast, Counsel for Balaz argued that the twinswere
Indian citizens by birth vide Section 3 of the Citizenship Act, 1955 as theywere
born to a surrogate mother who herself was an Indian citizen and also
pointedout that since the children were not born in Germany, they would not
get GermanCitizenship especially because Germany does not recognize
surrogacy. The GujaratHigh Court pointed out that the citizenship issue was a
momentous question whichhad no precedent in India.47
45
Editorial, "Germany Rejects Visa to Surrogate Twins, Centre tell SC” The Times of India, January 18th,
2010.
46
S. Murari, ‘Children have Right to Surrogate Mother’s Citizenship, says Indian Court’, Asian
Tribune (hallstavek, 15 november 2009), available at <www.asiantribune.com/ news/2009/
11/15/children-have-right-surrogate-mothers-citizenship-says-indian-Court>.
47
Ibid.
 Further the Gujarat High Court stated that its primaryconcern lay with the
rights of the two innocent babies more than the rights of anyother involved,
although it did recognize that the emotional and legal relationship ofthe babies
with the surrogate mother and the donor of the ova was also of vitalimportance.
The Court observed, “Surrogate mother is not the genetic mother orbiologically
related to the baby, but is she merely a host of an embryo or agestational
carrier? What is the status of the ova (egg) donor, which in this case is anIndian
national but anonymous. Is the ova donor the real mother or the
gestationalsurrogate? Are the babies motherless, can we brand them as legal
orphans orstateless babies? So many ethical and legal questions have come up
for considerationin this case for which there are no clear answers, so far, at
least, in this country.True, babies conceived through surrogacy, encounter a lot
of legal complications onparentage issues, this case reveals. Legitimacy of the
babies is therefore a live issue.Can we brand them as illegitimate babies
disowned by the world?”Throughout the case, the Gujarat High Court focused
on the need for acomprehensive legislation to be enacted to define the rights of
the respective partiesand in the absence of such legislation, the Gujarat High
Court stated that, “it was more inclined to view the gestational surrogate as the
natural mother, not theanonymous egg donor or the wife of the biological
father, who had neither donatedthe ova nor conceived or delivered the children.
58 Reluctantly, the only conclusionthat is possible is that a gestational mother
who has blood relations with the childmore deserves to be called as the natural
mother. She has carried the embryo forthe full 10 months in her womb,
nurtured the babies through the umbilical cord.Even if we assume the egg
donor is the real natural mother, even then she is an Indiannational so revealed
before the learned single judge, we are told. Both the egg donoras well as the
gestational surrogate are Indian Nationals, and hence the babies areborn to an
Indian National.”48
Thus, the Gujarat High Court concluded that the children were citizens by birth
pursuant to section 3(1) (c)(ii) of the Citizenship Act, 1955 and they were
entitled to Indian passports. In the opinion of the Court, denial of these would
violateArticle 21 of the Constitution of India and gave direction for the release
of passports.
48
Ibid.
  In the Goldberg Twins Case,49 Mr. Goldberg and Mr. Angel, a gay couple from
Israel, arranged surrogacy in India using a donated egg and Mr. Goldberg’s
sperm. Israel allows surrogacy but does not allow gay couples to be parents
under surrogacy arrangements. Upon the birth of twins to Goldberg and Angel,
the Jerusalem Family Court refused to allow a paternity test to initiate the
process for gaining Israeli citizenship for the twins and the couple remained
stranded in India. The issue was discussed at length in the Israeli Parliament
and with the support of Prime Minister Benjamin Netanyahu, the case was
appealed to the Jerusalem District Court where it was accepted that it would be
in the best interests of the children to allow the paternity test to go ahead. The
DNA test confirmed that Mr. Goldberg was the boys’ biological father and so
they were able to gain Israeli passports and travel to Israel after spending the
first three months of their lives in India.50
 Further in Volden case, a single Norwegian woman spent over a year
attempting to take twins born in India in 2009 to Norway due to a number of
difficulties because the children were not Norwegian citizens and could not be
issued Norwegian passports. The twins were born to a surrogate mother in
India at thedirection of a Norwegian single woman, who commissioned the
pregnancy with theuse of an Indian egg Donor and a Scandinavian sperm
donor.66 Under Norwegian law,a woman who gives birth to the child is the
child’s mother.67 According to theNorwegian authorities, the only way
motherhood could be transferred in such asituation was through adoption.68
After many months of negotiation, the Norwegian.51
1.11. Right to Procreation: Meaning and Content

Procreation is fundamental to the existence and continuation of any species. Itis a natural
desire and biological instinct of every creature to reproduce and to havean offspring.
Among human beings not only the natural and biological instincts play amajor role, but
there are also strong psychological and social needs to have children.

49
Anil Malhotra and Ranjit Malhotra, “ All Abroad for the Fertlity Express” Surrogacy in India :A Law in
the Making 32 (Universal Law publishing Co.,2013).
50
Ibid.
51
S Deb Roy, “Norwegian Stuck in Limbo with Twins not Genetically her own” The Times of India, July
21st, 2010.
The social concepts of love, family, community and mortality strengthen the biological
drive forgenetic procreation.52 The importance of procreation as a wholederives from the
genetic, biological, and social experiences that comprise it. Thus,reproduction is a basic
instinct that supplies societies with enough members whomaintain and perpetuate the
social order and who provide services for others. It alsosatisfies an individual`s natural
drive for sex and his or her continuity with nature andfuture generations. Reproduction
fulfills cultural norms and individual goals about agood life, and many consider it the most
important thing a person does with his or herlife.53

Procreation means a biological process by which women gives birth to a child.The

Webster’s Dictionary defines the term procreate as to produce (young); beget(offspring).
To beget means, to be the father of, to produce; cause. According to Black’s Law
Dictionary procreation means the “generation of children”.54

According to Bruce L. Wilder,the term procreation includes, deliberate actions by an

individual, which lead to birthof a child, whom that individual intends to raise as his/her
child from the time of birthto maturity, and to be legally bound as the child`s parent, even
when the geneticmaterial was obtained by that individual from a source outside his/her
body.55

Procreative rights are rights relating to reproduction and reproductive health and include
access tosexual and reproductive healthcare and autonomy in sexual andreproductive
decision-making. These rights are human rights and are universal,indivisible, and
undeniable. These rights are founded upon principles of humandignity and equality, and
have been enshrined in international human rightsdocuments. Reproductive rights embrace
a bundle of core human rights, including theright to health, the right to be free from
discrimination, the right to privacy, the rightnot to be subjected to torture or ill-treatment,
the right to determine the number andspacing of one`s children, and the right to be free
from sexual violence.

52
Chantelle Washenfelder, Regulating a Revolution: The Extent of Reproductive Rights in Canada, 44
Health Law Review, Volume 12, No. 2, 44 (2004).
53
John A. Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69
Virginia Law Review, 405 - 414 (1983), at p.405.
54
Kimberly Mutcherson, ―Feel Like Making Babies? Mapping the Borders of the Right to Procreate in
a Post-Coital World‖, p.6, available at <http:www.gwu.edu/~philosop/ news_events /…/BrownBag-
Mutcherson.pdf> Visited on 10.11.2023.
55
Bruce L. Wilder, Assisted Reproduction Technology: Trends and Suggestions for the Developing Law,
Journal of the American Academy of Matrimonial Lawyers, 177 (2002), p.186.
The United Nations Program of Action of the International Conference onPopulation and
Development, 1995 states that, reproductive rights embrace certainhuman rights that are
already recognized in national laws, international human rightsdocuments and other
consensus documents. These rights rest on the recognition of thebasic right of all couples
and individuals to decide freely and responsibly the number,spacing and timing of their
children and to have the information and means to do so,and the right to attain the highest
standard of sexual and reproductive health. It alsoincludes their right to make decisions
concerning reproduction free of discrimination,coercion and violence, as expressed in
human rights documents.56

Reproductive rights may include some or all of the following rights such as: theright to
legal or safe abortion, the right to control one`s reproductive functions, theright to quality
reproductive healthcare, and the right to education and access in orderto make
reproductive choices free from coercion, discrimination, and violence. Theserights may
also be understood to include education about contraception and sexuallytransmitted
infections, and freedom from coerced sterilization and contraception,protection from
gender-based practices such as female genital cutting (FGC) andmale genital mutilation
(MGM).57

Art. 23 (1) (b) of the International Convention on theProtection and Promotion of the
Rights and Dignity of Persons with Disabilities,2006 58 entails the right to reproductive
health and education. At the regional level,Art. 14 of Protocol to the African Charter on
Human and Peoples Rights on theRights of Women in Africa, 2003expressly articulates
women‘s reproductive rightsas human rights.59

Nonetheless, the content and scope of reproductive rights remainscontroversial. There are
two views on this matter. Scholars supporting the narrowview affirm that reproductive
rights rest only on the recognition of reproductivechoice, and argue that binding
reproductive rights are limited to Art. 16 (1) (e) ofConvention on the Elimination of all
forms of Discrimination against Women, 1979which safeguards the basic right of all
couples and individuals to decide freely andresponsibly the number, spacing and timing of

56
P.K. Das, Protection of Women from Domestic Violence, Universal Law Publishing Co. Pvt. Ltd., New
Delhi (4th edn. -2011), p.280.
57
http://en.wikibooks.org/wiki/Cultural_Anthropology/Hman_Rights> Visited on 20.11.2023.
58
The text was adopted by the United Nations General Assembly on 13 December 2006, and opened for
signature on 30 March 2007. Following ratification by the 20th party, it came into force on 3 May 2008.
59
Adopted by the African Union on 11 July 2003, available at <http://www.achpr.org> Visited on 6.10.2023.
their children and to have theinformation and means to do so, as well as to attain the
highest standard of sexual andreproductive health.60

Regarding the second and wider view, reproductive rights embrace certainhuman rights
that are already recognized in national laws, international human rightsdocuments, and
other relevant UN consensus documents based on the recognition ofreproductive choice in
Art. 16 of CEDAW. Scholars and organizations supportingthis view identify 12 rights
within this group,61 viz. the right to life,62 the right tohealth,63 the right to personal
freedom, security, and integrity,64 the right to be free ofsexual and gender violence, 65 the
right to privacy,66 the right to equality and non-discrimination,67 the right to consent to
marriage and equality in marriage,68 the rightto employment and social security69 including
the right to legal protection of

maternity,70 the right to work in an environment free of sexual harassment, 71 the rightto
non-discrimination on the grounds of pregnancy both in and out of the workplace, 72the
right to education and information,73 the right to be free from practices that harmwomen
and girls,74 and the right to benefit from scientific progress.75

Thus, in short,right to reproduction means the basic right of all couples and individuals to
decidefreely and responsibly the number, spacing and timing of their children and to
havethe information and means to do so, and the right to attain the highest standard of
sexual andreproductive health. In addition, it also includes their right to makedecisions
concerning reproduction free of discrimination, coercion and violence, asexpressed in
60
Hereinafter referred to as CEDAW and adopted by the UN General Assembly on 18 December
1979. Full text available at <http://www.un.org> Visited on 6.10.2023.
61
Julia Gebhard and Diana Trimino, ―Reproductive Rights, International Regulation‖, Maxplanck
Encyclopedia of International Law, available at <http://www.mpepil.com> Visited on 10.3.2011
62
Article 3 of Universal Declaration on Human Rights, 1948 (hereinafter referred to as UDHR), Art. 6
(1) ICCPR, and Art. 6 (1) (2) CRC.
63
Art. 25 of UDHR, Arts. 10 (2), 12 (1), and (2) ICESCR, Arts. 12 (1) (2), 14 (2) CEDAW, and Art.
24 (1) (2) CRC.
64
Arts. 3 and 5 UDHR, Arts. 7, 9 (1) ICCPR, and 37 (a) CRC.
65
Arts. 5 and 6 CEDAW and Arts. 19 (1) and 34 CRC.
66
Art. 17 (1) (2) ICCPR and Art. 16 (1) (2) CRC.
67
Art. 2 UDHR, Art. 2 (1) ICCPR, Art. 2 (2) ICESCR, Arts. 1, 3, 11 (2) CEDAW, and Art. 2 (1), (2) & (5)
CRC.
68
Art. 16 (1) (2) UDHR, Art. 23 (2) (3) (4) ICCPR, Art. 10 (1) ICESCR, and Art. 16 (1) (2) CEDAW.
69
Art. 23 UDHR, Arts. 6 & 9 ICESCR.
70
Art. 10 ICESCR, Art. 11 CEDAW.
71
Art. 11 CEADW.
72
Art. 11 (2) CEDAW.
73
Art. 10 CEDAW.
74
Arts. 2 (f) and 5 (a) CEDAW, Art. 24 (3) CRC.
75
Art. 27 (1) UDHR, Art. 7 ICCPR, and Art. 15 ICESCR.
human rights documents. The right to use appropriate health careservices so that women
can enjoy safe pregnancy and delivery and couples can havethe best opportunities to have
healthy children is also included.

1.12. Surrogacy and Human Trafficking

With widespread accessibility of reproductive-assisted technologies andglobalization of

communications and services, surrogacy is increasinglypracticed with emerging and
conflicting laws among parents based in differentlegal jurisdictions. Surrogacy means,
having another woman bear a child forsomeone else, increasingly poses a troubling
dilemma for governments,religious organizations, surrogates and intended parents, and
even the childrenthemselves. Surrogacy is a fundamental human right for some and
exploitationof others, especially women who are poor.76

Surrogate motherhood is acommodification of the human person, the child becomes the
mere object of aconvention, while the surrogate mother is used as an incubator. Such
commodification in itself violates the dignity of both the surrogate mother andthe child. 77

Trafficking in person is serious crime and grave violation of human rights.Every year,
thousands of men women and children falls in to the hands oftraffickers, in their own
countries and abroad. United Nations Protocol toPrevent Supress and Pursuit Trafficking
in person especially women andchildren provides that trafficking in person as the
recruitment, transportation,transfer, harbouring or receipt of persons, by means of the
threat or use of forceor under from of coercion, abduction, of fraud, of deception, of the
abuse ofpower of a position of vulnerability or of the giving or receiving of payments
orbenefits to achieve the consent of a person having control over another person,for the
purpose of exploitation. Exploitation shall include, at a minimum, theexploitation of
prostitution of others or other forms of sexual exploitation,forced labour or services,
slavery or practices similar to slavery, servitude or theremoval of organs.78

76
Joseph Chemie and Barry Mirkin ‘Surrogacy Human Right or Reproductive Exploitation,’ available at
http://yaleglobal.yale.edu/content/surrogacy-human-right-or-reproductive- exploitation, visited on
14/11/2023.
77
Surrogate Motherhood, A violation of Human Rights’, Report presented at the council of Europe,
Strasbourg,26 April 2012, p2, European Centre of Law and Justice.
78
Article 3 para (a) of the United Nation Protocol to prevent, suppress, and pursuit traffickingin person,
especially women and Children, supplement United Nations Convention onTransnational organized Crime,
available at http://www.osce.org/odihr/19223?download=true, Last visited on 13/11/2023.
Optional Protocol to the Convention on the Rights of Child on the Sale ofchildren, Child
Prostitution and Child Pornography (2000) provides that stateshall prohibit the sale of
children, child pornography as provided by the presentprotocol. 79 Sale of Children means
any act or transaction whereby a child istransferred by any person or group pf person to
another for remuneration or anyother consideration. Child Prostitution means the use of
child in sexualactivities for remuneration or any consideration. 80 Child Pornography
meansany representation, by whatever means, of child engaged in real or
stimulatedexplicit sexual activities or any representation of the sexual parts of a child
forprimary sexual purpose. 81

Surrogacy laws are allegedly enacted to protect both unborn babies and parentsseeking
children. But unfortunately global practice of surrogacy at commerciallevel leads the
exploitation of woman, who is surrogate and sale & purchase ofthe child. The business of
surrogacy is ripe with opportunities to exploit womenand children. At its very core,
surrogacy is exploitation. Surrogacycompromises the dignity of the child by making the
child the object of acontractual commodity. It further compromises the dignity of the
mother, evenif her participation is voluntary, by merely treating her as a gestational
oven.The exploitive reality of surrogacy arrangements and the resultingcommodification
of women and children have united unusual allies.82

Exploitation literally means, when women consents to a transaction which iseither harmful
or unfair to her and does so because some aspect of her characteror circumstances is used
against her by the other party or parties to theagreement. 83 Exploitation presupposes, as a
minimum, that a person A (theexploiter) benefits from a situation that involves B (the
exploit) in anappropriate or unreasonable way, made possible among other things by
Ainsome sense being the superior party in the situation. 84 Though in most of thecountries
surrogacy is either prohibited or regulated by the Legislations. But inSome countries still
such practice is neither prohibited nor regulated.

79
Article 1 of the Optional Protocol to the Convention of Rights of Child, Sale of Children,Child Prostitution
and Child Pornography (2000) (OPSCCRC) Available at
ttp://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx , visited on 11/11/2023.
80
Article 2(b) of OPSCCRC.
81
Article 2(c) of OPSCCRC.
82
Catriona McKinnon, ‘Issues in Political Theory’, Oxford University, Press UK (2008).
83
Ibid.
84
Wertheimer, Alan, 2008. Exploitation. In: Stanford Encyclopedia of
Philosophy(http://plato.stanford.edu/entries/exploitation/) and Godin, Robert E., 1995. Protecting the
Vulnerable.Chicago and London: University of Chicago Press.
Exploitation of surrogate women are seen in both countries where surrogacy isprohibited
and even in those countries where the surrogacy is legalized orpermitted. Where surrogacy
is prohibited, women may be coerced in toaccepting surrogacy, due to emotional pressure,
threat or promise concerningtheir jobs and mostly in economic exigencies. In general
intending parents arerich, older and better educated, such factors add the risk of coercion
and the roleof intermediary services (surrogacy agency, middle man, ART clinics)
haspotential to cause exploitation of surrogate as they mostly belong to poorfamilies, are
illiterate and are not aware of their legal rights.85

In developing countries, clinics advertise for low-cost surrogacy: the price of ababy in
India may be one fourth of the price in California (Forced Surrogacy).In case an egg-
donation is necessary, the cost varies to threefold if the donor isCaucasian rather than
Indian. Care for the surrogate mother is not a priority. Insome places, they are imposed a
Caesarean section, just to make sure the babylooks perfect, and are not always given
adequate care after the birth.86

The Babe 101 case, in which Thailand Police arrested four Taiwanese, oneChinese, and
three Myanmar nationals and rescued fourteen Vietnamesewomen, aged 19 to 26 from a
criminal ‘Baby Breeding’ ring. Nine of the womenagreed to be surrogate on payment of
a$5500, at least four said they have beentricked. There passport have been confiscated.
Seven of the women were thepregnant and two have recently given birth.87

Secondly surrogacy as stated above leads the children as commodity, they canbe ordered,
designed and produced on the terms of contract or even denied totake after birth. Recent
Baby Gammy case from Thailand, Baby S case from theAmerica are the glaring examples.
Before that United States Attorney’s Officeand the federal Bureau of Investigation
recently unrevealed a conspiracy ofattorneys in the United States, specializing in
reproductive law that usedgestational carriers to create an inventory on unborn babies that
would sell for$100,000 for each.88

85
Andrew Kimbrell ‘The case against commercialization of child bearing’, Willamette Law Review
1035(1988), at p.1040.
86
Rewire, ‘Criminal surrogacy Ring exposed in Thailand’, march 11, 2011, available
athttps://rewire.news/article/2011/03/17/criminal-surrogacy-ring-exposed-thailand/ , last visited
on14/11/2023.
87
Ibid.
88
News Release, Office of the United States Attorney Southern district of California, Baby Selling Ring
Busted 1(Aug. 9, 2011) (on file with the Office of the United States Attorney Southern district ofCalifornia).
A current issue that is analogues to surrogacy is whether people should bepermitted to sell
organs that others vitally need, such as kidney, for an erroneousfee. In discussion of
surrogacy, the question often arises whether such sale oforgans should be allowed,
encouraged, or outlawed. Although there isobviously certain common issue with
surrogacy, including the ethics of such apractice that is available only to the wealth, there
is more of an affirmative stateinterest in allowing the sale of organs, since presumably it
makes possible thecontinuation of life for someone who is already in existence. There is
stateinterest in preserving lives in being, but there is no similar state interest inencouraging
more births.89 It is argued that if a woman can undergo caesareans for their babies, and if
awoman may similarly donate a kidney, then she may also donate her uterus togestate
someone else’s body.

First of all, the, the comparison fails because theintent in both case is not analogous. The
intent of Kidney donation is to restorenormal physiology to the recipient that is normal
renal function withouturemia. Similarly, the intent of caesarean is to restore normal
physiology to athreatened fetus, that is, normal brain oxygenation without cerebral palsy.
Butthe intent to gestational surrogacy is not restore anything to normalcy, but tohelp to
create a human being who otherwise would not exist. If it is argued thatgestational
surrogacy is grants a restoration of normal ‘fertile physiology’ to aninfertile couple, but
there is two problems with this arguments. First is, it is not

medically accurate because there is not psychological improvement taking placein the
infertile couple, if a recipient is to be defined strictly as infertile couple,then whether
assisted by third person or not together responsible for theprocreation of new life. One the
face of it giving a new baby to an infertilecouple is not the same sort of action as giving
kidney.90

1.13. Impact of Childlessness

Every human being has an innate desire to have a natural offspring. The reasons are many,
to love and to be loved, for performing the religious rituals at funeral pyre, for carrying the
tradition of a family, to preserve a particular community and so on. The significance and
need of a child are also emphasized in almost all the religions of the world. Begetting and
giving birth to a child is essential not only for fulfilling the personal aspirations of the
89
Thomas L. Cook, ‘Gestational Surrogacy and Live Organ Transplantation, The Contrast’, edited by Steven
J. Jensen, The Ethics of Organ Transplantation, The Catholic University of America Press,2011, p251.
90
Ibid.
individuals but also for continuation of the society. This desire is accomplished by the act
of procreation which is a natural process by which the married couple can have their own
offspring. Traditional reproduction is an unambiguous three-dimensional phenomenon
involving natural mother, natural father and natural child sharing amongst them the entire
natural biological process, without intervention from any other external agencies except
for minimal medical expertise.91 A child is seen to be a natural product of the procreative
act of its parents.92 For most couples, the procreation of a child is one of the simplest tasks.
Melissa Williams, the renowned Political Scientist, commented that Reproduction of child,
after all is the oldest production known to humankind, a process that is programmed into
the biological fiber of our beings and defines our very survival. 93 However, unfortunately a
large number of people due to various reasons are unable to fulfill this very biological
process fruitfully and beget a child. The major reason for childlessness is infertility which
may be either medical or social.

Medical infertility is usually defined as the inability to achieve pregnancy after a year or
two of trying to conceive a child through regular sexual intercourse. 94 In the past few
decades a new type of infertility termed as social infertility has emerged. It means the
inability of individuals to have a child due to the various social circumstances in their
life.95 For example, single individuals, widowed and divorced, may be fertile but are
unable to have a child unless and until they marry. Likewise, the homosexual couples
cannot have a child due to the fact that for begetting a child a sexual union between man
and woman is required.

Further, aged individuals, disabled as well as those individuals who have undergone
voluntary sterilization can also be termed as social infertiles. Childlessness either due to
medical or social infertility, can be a devastating experience that causes enormous amount
of emotional pain. It can have a grave impact on every aspect of an individual‘s life
affecting his/her self-esteem and relationship with others. 96 It is well-known that in many
91
V. Rajalakshmi, ―Reproductive Technology vs. Women‖, 1 Supreme Court Journal, 48 (1991), at p.49.
92
Sarah Franklin, ―Postmodern Procreation: A Cultural Account of Assisted Reproduction‖, in Faye D.
Ginsburg & Rayna Rapp (eds.) Conceiving the New World Order: The Global Politics of Reproduction,
California University Press, California (2005), p.336.
93
Debora L. Spar, The Baby Business, Harvard Law School Press, Harvard, U.K. (2006), p.1.
94
Marcia Inhorn, Frank Van Balen, Infertility Around the Globe: New Thinking on Childlessness, Gender,
and Reproductive Technologies, University of California Press, London, U.S.A. (2002), p.12.
95
Camelia Soo, ―Babies for the Socially Infertile: How Conceivable is it?‖, 12 The New Zealand Medical
Student Journal 27 (2010).
96
Dr. Nicholas Tonti Filippini, ―Reproductive Technology Outcomes in Australia: Analyzing the Data‖, 1
Bioethics Research Notes 15, March (2003).
couples childlessness due to infertility causes serious strain in their interpersonal
relationships, and often leads to personal distress and periods of existential crisis. One of
the important challenges faced by a childless couple is learning how to manage the
childlessness with oneself, with the partner and with the society. Couples often feel
frustrated, angry or guilty after such a diagnosis. Women may feel unfeminine and men
may feel powerless and un- masculine. In some cases the inability to have children is one
of the main causes for divorce.97 The treatment for medical infertility also involves stress,
because some treatments may be painful, and there may be fear that the treatment will not
work. Further, the side effects of the medications, and the necessity of going through
procedures several times, can test a couple‘s patience and create a strain on their
relationship. Thus childlessness has a serious impact on the couples and individuals who
wish to beget a child and are unable to do so due to various reasons. The need for a child
and the impact of childlessness has been recognized since ancient times and mankind has
strived to find a solution for overcoming childlessness.

1.14. Rights available for Surrogate Child

1. Children’s access to identity information should be facilitated in accordance with

the age and maturity of the child. This will give children the opportunity to access
information concerning their identity and origins and will support the child’s
enjoyment of other rights.

2. CRVS systems should be set up to collect, store and disseminate such data as part
of their vital statistics reports.

3. Contractual provisions purporting to determine definitively legal parentage or

parental responsibility pre-birth should not be enforceable.

4. Children are not discriminated against or abandoned on grounds of disability.

1.15. Surrogacy As a Solution

Surrogacy can indeed be a solution to childlessness for individuals or couples who are
unable to conceive and carry a pregnancy to term on their own. Surrogacy is a
reproductive method where a woman (the surrogate) carries and gives birth to a child on

97
K. Svitnev, ―Legal Control of Surrogacy – International Perspectives‖, in Joseph G. Schenker (ed.),
Ethical Dilemmas in Assisted Reproductive Technologies, Walter de Gruyter Gmbh & Co., Germany
(2011), p.149.
behalf of another person or couple (the intended parents). It can be a viable option for
various reasons, including medical issues, infertility, or same-sex couples who want to
have a biological child.

The finest treasures we bring into the world are our children. In the world, nothing
compares to the love and pleasure that innocent youngsters spread. The birth of a child is
seen as a wonderful occasion, and presents and offerings to God are presented to
demonstrate thankfulness and delight. The institution of marriage and family has been
used to give birth and raise children from earliest period. 98 In various instances, belief
traditions and civilizations all throughout the globe, the importance of having a kid in a
family and marriage has been highlighted and recognised. The world's major faiths,
including Hinduism, Christianity, and Islam, have placed a high value on a child's
conception by an individual. Marriage is widely seen as a need for having children.The
bearing of the child is considered to be an important part of the institution of marriage.
Furthermore, in a nation like India, where customary taboos still exist, women are only
recognised as wives if they have children. 99

Attempts to discover solutions to childlessness aren't new; they've been around since the
dawn of civilization. In actuality, all of the world's chief religions have recognised and
accepted the possibility that some couples would be unable to produce children for various
reasons and As a result, various methods for conceiving a child have been recommended,
including not just married relationships but also nonconjugative and other options. Diverse
rituals and customs have been noted to be done to overcome childlessness in the past, few
of these customs, including keeping fast and visits to temples, are still experienced today.
Adoption became popular as a way to remedy childlessness and provide a child for
infertile parents as a society and legal systems evolved. However, the adoption process
does not satisfy an Individuals' natural desire to have their own genetically linked kid. The
pursuit of fresh methodologies and research in the realm of human reproduction was
inspired by this aim. AHRT has arisen as a way of resolving childlessness and assisting
individuals in raising a child who is genetically linked to them.100

98
K..Kusuman, ―Wombs on Hire: A wake up call challenge, Need for A Right on Surrogacy‖, Kerla Law
Times, page no.8 (2012).
99
Baby M, 537 A.2d 1227 (N.J. 1988).
100
Kembrell, "The Human Body Shop: The Engineering and Marketing of Life", New York: Harper San
Francisco; (1993).
Surrogacy is the most extensively utilised and also the most contentious of all ART
procedures. Surrogacy is a measure that allows individuals or couples to produce a kid
who is hereditarily connected to them, rather than a therapy for infertility. Surrogacy is a
procedure that allows pairs or people who want to have a baby but are not capable or
unable to carry a pregnancy for different reasons to turn out to be parents of a genetically
connected kid by the help of a surrogate mother. Surrogacy is the most extensively utilised
and, at the same time, the most contentious of these ART procedures. Surrogacy is a
means for people or couples to produce a kid who is genetically related to them, rather
than a therapy for infertility. Surrogacy is a procedure that allows pairs or people who
want to have a baby but are not capable or unable to carry a pregnancy for a variety of
motivations for becoming parents to a genetically linked kid having the assistance of a
surrogate mother. Today, many ART technologies, notably surrogacy, have enabled
couples or individuals to conceive a baby without having sexual contact. For either
commercial or philanthropic purposes, a lady or substitute conceives, gestates, and gives
birth to a baby for such couples. In these cases, the proposed parents who desire to have a
kid may give genetic substance, or surrogate moms or donors/donors may also provide
genetic material.101 The availability of highly qualified and skilled physicians, high-class
clinic amenities at a small charge in comparison to other nations, most importantly, the
effortless accessibility of substitute lady at a small cost and with a limited dogmatic
structure all have contributed to India's growth as an international hub for surrogacy
services. Commercial surrogacy is viewed as a win-win scenario. This helps us understand
the needs of anxious and infertile parents; of course, it is the child they are anxious to
have, and it is important to avoid making an unhealthy and meaningless surrogate
arrangement during commissioning.

1.16. Measures for Assisting Human Reproduction

With the growth of society and legal systems the method of adoption was developed to
enable childless couples to have a child. Adoption provided an opportunity to have a child
and fulfill the desire of an individual to raise a child; however it failed to fulfill the natural
innate desire of individuals to have a child genetically related to them. The desire to beget
a genetically related child led to various experiments and research in the field of human
reproduction and resulted in development of various techniques.

101
Sharmila Rudrappa, Reproducing Dystopia: The Politics of Transnational Surrogacy in India, 2002–2015,
44 CRITICAL SOC. 1087, 1097 (2017).
The technological advancements in the field of human reproduction and medical science
helped to develop various methods such as Artificial Insemination, In-vitro Fertilization,
Surrogacy, etc,102 for assisting a couple to beget a genetically related child. These
technologies are collectively known as Assisted Human Reproductive Technologies or
Artificial Human Reproductive Technologies. 103 These technologies have helped couples
and individuals to overcome obstacles to reproduction arising from infertility, medical
complications, and threat of harm to mother or child, personal choice, biological
limitations of same-sex couples, death of a partner, and the risk of transmission of genetic
diseases to the child.104 The procedures involved in these most widely used methods of
ART are as follows:

 Artificial Insemination (AI)

Artificial Insemination is a method by which the woman is impregnated with

semen from either her husband or from a donor or in extreme cases a mixture of
semen from her husband and the donor. This method is considered as the simplest
form of ART and can be accomplished with a syringe.105

 In-Vitro Fertilization (IVF)

IVF is a technique by which the male and female gametes (sperm and egg) are
fertilized outside the female body. It involves hormonal monitoring and stimulation
of the woman producing ova, harvesting the ova and mixing them with sperm in a
Petri dish containing a culture medium. Then after approximately three days, one
or more developed embryo is transferred back to the woman who seeks the
treatment.106

 Surrogacy

102
John A. Robertson, ―Assisted Reproductive Technology and the Family, 47 Hastings Law Journal, 911
(1995-1996).
103
Lars Noah, ―Assisted Reproductive Technologies and the Pitfalls of Unregulated Biomedical
Innovation‖, 55 Florida Law Review, 603 (2003), at p.608.
104
Charles P. Kindregan, Jr., ―Thinking About the Law of Assisted Reproductive Technology‖, 27 Wis. J.
Fam. L. 123 (2007).
105
Walter Wadlington, ―Artificial Conception: The Challenge for Family Law‖, 69 Virginia Law Review,
April, 465 (1983), at p.469.
106
Lyria Bennett Moses, ―Understanding Legal Responses to Technological Change: The Example of In-
Vitro Fertilization‖, 6 Minn. J.L. Sci. & Tech. 505 (2004-2005), at p.510.
 It is an arrangement by which a woman agrees to become pregnant by AI or
through implantation of embryo and then carry the child for full term and after
birth of child relinquishes all her parental right over the child and hand it over to
another couple or individual. These techniques offer the advantage to couples or
individuals to beget a genetically related child.107

1.17. Need For Surrogacy

Mankind must give birth to children and bring them for continuation ofhuman society in
perpetuity. For a civilized human society to propagate biological relationship between a
male and female is required. To provide social sanctity tosuch a relationship the concept of
family has been developed by human beingover a period of time. In general therefore the
family has been seen as a universalsocial institution as an inevitable part of human
individual and society as a whole.In a study entitled social structure, George Peter
Murdock defines familyas follows ‘The family is a social group characterized by common
residence,economic co-operation and reproduction. It includes adults of both sexes at
leasttwo of whom maintain a socially approved sexual relationship and one or
morechildren own or adopted of the sexually co-habiting adults. Thus the family
livestogether pools its resources and work together and produces offspring. At leasttwo of
the adult members conduct a sexual relationship according to the norms oftheir particular
society. Such norms vary from society to society. For example,among the Banaro of New
Guinea, the husband does not have sexual relationswith his wife until she has born a child
by a friend of his father. The parent childrelationship is not necessarily a biological one.
Its importance is primarily social,children being recognized as members of a particular
family whether or not theadult spouses have biologically produced them. Unfortunately
some families arenot able to have children due to some medical problem in the process
ofreproduction. Process of reproduction among human being has the followingstages.

 Production of sperm and egg in husband and wife respectively.

 Fertilization of egg.
 Conception and development of embryo.
 Delivery of child.

Due to the defect or deficiency at one or the other stages of reproduction,some couple may
not be able to have children of their own. When all thetraditional means of reproduction
107
Jonathan Herring, Medical Law and Ethics, Oxford University Press, U.K. (4th edn. - 2012), p.384.
have failed, couples opt for surrogacy.Following medical conditions usually necessitate
surrogacy:

 Malformation of or infection in the womb.

 Absence or removal of womb by hysterectomy.
 Recurring miscarriages.
 Repeated failure of IVF.

It is for this reason some extra natural methods have been developed over aperiod of time
to overcome this problem. The various extra natural methods tohave a child may broadly
be divided in two categories such as biological repair method and Legal method.

Biological repair method falls in the category of ART, while Legal methodfalls in the
category of adoption. In all recognized societies adoption isrecognized. A Childless couple
may become father and mother through theprocess of adoption. Adopted child bears all the
rights and duties as that of anatural born child. In ART efforts are made through scientific
and technologiesmeans to repair the defects in one or the other spouse in the process of
naturalreproduction by providing through artificial means the issues less couple with
achild in a natural way.

Today, there has been a spectacular change in the field of reproductiontechnologies.

Reproductive science has come in with techniques like donor insemination, in vitro-
fertilization and embryo transfer methods which havecompletely revolutionized the
reproductive environment. These techniques haveinfused hope into many infertile couples,
who far long have waited to have a childof their own. The growth in the ART (Assisted
Reproductive Technology) isrecognition of the fact that infertility as a medical condition
is a huge impedimentin the overall wellbeing of the couple and cannot be overlooked.
Especially in apatriarchal society like India. A woman is respected as a wife if she is a
mother ofa child so that her husband’s masculinity and sexual potency is proved and
thelineage continues.108

108
Srinivas, M Assisted Reproductive Technology: Legal issues, Andhra Law Times,2010(4)p28.
Some authors put it as follows: “the parents construct the childbiologically, while the child
construct the parents socially.” Infertility is seen as amajor problem as kinship and
familyties are dependent on progeny. Hereinsurrogacy comes as a supreme saviour.109

The Last two decades have been witnessto a rapid increase in the number of technologies
that assist reproduction,increasing the chances of conception and carrying a pregnancy to
term.110 Since theend of the 20th century these technologies have developed at a rapid
pace. Theyhave also influenced the way in which society views pregnancy, reproduction
andmotherhood, (in olden days motherhood lies on the women who gives birth to thechild,
whereas today motherhood is lies not only the women who gave birth to thechild but also
on the women who cannot give birth to the child through the meansof surrogacy). 111 But
today surrogacy is often seen as an alternative to adoption,although adoption, for the
reason that adoption may not provide for a genetic relative child, whereas in surrogacy the
couple have a child with whom they have a genetic relation. From 1978 onwards, a
number of Assisted Reproductive Techniques have been developed by scientists.112

Assisted Reproductive Techniques has not only enhanced the possibility of pregnancy but
have also made women conceive in situation where this would not have been possible a
decade ago. Traditional concepts and values have undergone dramatic turmoil consequent
to advancement in biomedical technology. Like in many fields of science Reproductive
Technology and Surrogate motherhood have brought forth several socio-ethical and legal
issues in vague that need to be addressed, to make it an effective tool for realizing the
dreams of motherhood for many women who could not otherwise conceive. Surrogate
motherhood is not a new solution to the old problem of not being able to reproduce an
offspring.

Surrogacy has been around a long time and dates back to biblical times. Surrogacy is not a
new development emerged with the advancement in assisted Reproductive Technologies
in 20th century though there were certain other customs which were prevalent in the
ancient Indian societies to deal with this problem of infertility like that of the custom of
‘Niyog’ which is different from modern day concept of surrogacy, though the idea was the

109
Justice Lakshmanan, surrogacy Bane or Boon,2009, Madras Law Journal at 41.
110
Sama, Assisted Repro. in India: Implication for women, Eco. & poli. weekly, June, 9,2007,
p.2184.
111
Ibid.
112
Mathiharan. K and Prof. Patnaik Amrit K, Medical Jurisprudence and toxicology,23rd Ed. P867.
same in both situations, but the procedure is different. In the past surrogacy arrangements
were generally

confined to kith and kin of close relatives, family or friends, usually as an altruistic deed.
Monitory Compensation involve in the process of surrogacy has extended its arrangement
beyond country, family, state and Community.

Surrogacy services are advertised, surrogates are recruited and operating agencies make
huge profits as there is no law to deal with the surrogacy cases in India, which creates fear
of exploitation. Though the invention of ART in the forms of surrogacy results as a boon
for the mankind but today this practice creates an atmosphere of controversies. Initially
this process was practiced to help those, who cannot procreate in natural way. In India
there is no laws on the issue of surrogacy which make this practice more controversial and
complicate. The complications have arisen regarding the rights of the surrogate mother,
the child, and the commissioning parents.

There is no lawful stipulation to protect the attention of the surrogate mother, surrogate
child or the commission parents in India, looking at such an issue from commercial or
commerce point of view has complicated the issue further. She has no rights whether to
abort the baby or keep it and continue with the pregnancy. There have been instances
where the contracting individuals has specified the sex of the baby as well as even refused
to take the baby if it was born with birth defects. Though there are certain guidelines of the
Indians council of medical research which lays down certain rights and duties to follow in
these processes, but these guidelines are not adequate to answer such an immense
problem, hence the subject needs a comprehensive legislation to tackle all these problems
associated with the issue of surrogacy.

1.18. Legality of Surrogacy in India

The first reported surrogacy in India, took place in 1994 in Chennai. In 1997, an Indian
woman acted as a surrogate for money and this is considered as the first reported instance
of commercial surrogacy in India.113 During the past one decade the number of children
born through surrogacy in India has increased enormously. It is pertinent to point out that
the first case of commercial surrogacy in India that occurred in 1997 generated a huge
debate on the legality of surrogacy practices. In this case, Nirmala the surrogate woman

113
Sandhya Srinivasan, ―Surrogacy Comes Out of the Closet‖, Sunday Times of India, July 6, 1997.
agreed to act as a surrogate for a couple from Chandigarh due to reasons of financial
necessity.114 This incident received a lot of public attention and generated various debates
on the issues surrounding surrogacy practices. However, the response of the legal system
to the issue of surrogacy has been very slow. However, the Indian Council for Medical
Research came up with certain guidelines.115

In 2000, the ICMR adopted Ethical Guidelines for Biomedical Research on Human
Participants, in which they prescribed certain guidelines to deal with ART in general. It is
pertinent to mention here that, in most of the books, articles and websites, various authors
have stated that commercial surrogacy was legalized in India in 2002. 116 However, it is
found that, in 2002 there was neither legislative action, nor any official declaration by
Government, nor any judicial decision legalizing commercial surrogacy. Instead, only a
Draft Guideline for Accreditation, Supervision and Regulation of Assisted Reproductive
Technology Clinics in India was submitted by ICMR to the Ministry of Health, Union of
India and it appears that this step was interpreted as legalization of commercial
surrogacy.117 These 2002 Guidelines were further updated and adopted by ICMR in 2005.
These guidelines contain provisions specifically dealing with the surrogacy practices in
India. At present this ICMR guideline is the only regulatory framework available in India
to deal with surrogacy practices. However this guideline is not binding and its adoption
and application is only voluntary and more over it is silent on various issues raised by
surrogacy practices. Further, though the Indian Government has formulated. The Assisted
Reproductive Technology (Regulation) Bill and Rules, 2008, it has not been officially
enacted as an Act.

The vulnerability of Indian legal system to deal with issues related to surrogacy came to
limelight in Baby Manji118 case as well as Jan Balaz119 case. The Baby Manji’s episode
exposed the real picture of the possible threats of surrogacy. In this case a Japanese couple
sought the help of surrogacy and an Indian surrogate mother to give birth to a child.
114
Reproductive Technologies as Global Form: Ethnographies of Knowledge, Practices, and Transnational
Encounters, Campus Verlag Gmbh, Germany (2012), p. 151.
115
Indian Council of Medical Research, Ethical Guidelines for Biomedical Research on Human Participants,
New Delhi (2006), p.viii, Available at Visited on 10.7.2023.
116
John Connell, Medical Tourism, CAB International, U.K., (2011), p.142; Wendy Chavkin & JaneMaree
Maher, The Global Politics of Motherhood: Transformation and Fragmentation, Routledge, New York
(2010), p.137.
117
Erica Davis, ―The Rise of Gestational Surrogacy and the Pressing Need for International Regulation‖, 21
Minn. J. Int’l L. 120 (2012), at p.126.
118
A.I.R. 2009 S.C. 84.
119
Jan Balaz v. Anand Municipality & Others, A.I.R. 2010 Guj. 21.
However during the time of pregnancy, the Japanese couple divorced and the intended
mother refused to take the child. Fortunately, the father and the grandmother of the child
were willing to take care of that child and a possible confusion could therefore get
averted.120 The important questions that arose from this incident was that, if the father and
grandmother had also refused to accept the child then what would have been the fate of
that surrogate child and the surrogate mother? And in such circumstances, can the
intended parents be made liable for such refusal to accept the child?

1.19. Review of Literature

The researcher reviewed both Indian and foreign authors' current published work on the
principle of substitution. Following is the selected review of some literature referred:-

Pradeep Devnath Gerard &Kumaran, Senthi (2020) put a glance on the diverse case
plotting in India and the itinerary of different rules took in by the government of India to
control surrogacy practices. This only focuses on the Surrogacy Regulation Bill, 2019.It
suggests complete ban on surrogacy.121

Winston & Bane (1993) Infertility affects about 1 out of every 6 couples. This includes
not just those unable to conceive after 12 months of trying, but also those that cannot carry
a pregnancy to term. Since the 1970s, the number of infertile couples has increased. Some
might argue that the reason for this is that this number only includes couples who seek
clinical assistance for infertility. Over the years the social attitudes towards medical
interventions like IVF have changed. As a result infertile couples have become less
reluctant to seek help, which is reflected in the percentage of infertile couples registered
by the clinics. Others do not fully share this opinion. Medical experts believe that women
nowadays postpone childbearing because of career prospects and contraception.
Consequently, women are older once they start trying to conceive a baby. Older women
are generally less fertile because of age-related biological factors. Due to several reasons,
such as the changing sexual practices, the use of intrauterine devices, more and more
women suffer from pelvic inflammatory disease, which is a leading cause of female
infertility.122

120
Baby Manji Yamda v. Union of India & Another, A.I.R. 2009 S.C. 84.
121
Pradeep Devnath Gerard & Kumaran, Senthi, ―Surrogacy in India: Ethical and Legal Aspect‖, Indian
Journal of Forensic Medicine & Toxicology, Vol. 14, No.4 (2020).
122
Vance Biblios Winston, K. I. & Bane, M.J. (1993). Gender and public policy: Cases and comments,
Boulder, CO: Westview Press, Inc.
The Brazier committee made a report for the UK government addressing the specific
dimensions of the existing surrogacy regulatory framework of UK namely payment to the
surrogate mother in lieu of surrogacy arrangement, regulating the role of surrogacy service
agencies and lastly, reviewing the existing surrogacy law and ART law. The Brazier
committee is a successor of the Warnock committee. After a decade of the report of the
Warnock committee, the Brazier committee observed that the minority view of the
Warnock committee i.e. regulating surrogacy and banning of commercial surrogacy, was
relevant in the socio-legal and ethical context of the UK. Addressing the payment to
surrogate mother in the course of altruistic surrogacy, the committee recommended that
covert payment must be checked by firstly, defining and itemizing of the payment,
secondly, proper documentation of payment and thirdly, avoiding payment heads like
payment for loss of potential earning. The committee also addressed the need for
regulating the surrogacy service agencies which are not prohibited by virtue of
commercial surrogacy ban. It recommended that the UK health department should
formulate a code of practice in consultation with human fertilization and embryology
authorities. It also recommended that only registered surrogacy Service agencies should be
involved in surrogacy.123

Cook124 tried to formulate an effective model to show that the human right jurisprudence
encompasses not only reproductive rights but reproductive self-determination as well,
which is a wider concept. The author depicted the relevancy of human right and
reproductive self-determination at both international and regional level. The author
explains that since both concepts are inter-related, reproductive self-determination stands
on promotion and protection of some of the very fundamental human rights. Hence the
State has an obligation toward reproductive rights by ensuring the fullest realization of the
basic human rights. In this way the author tried to caste a duty on the State towards
realization of reproductive self-determination.

According to Kembrell (1993), women are socially, mentally and physically abused in the
practice of surrogacy. One important consideration is that most of the women who serve as
replacements do this because they need money to keep their families alive. Additionally,
123
Margaret Brazier and others, Surrogacy - Review for Health Ministers of Current Arrangements for
Payments and Regulation; Report of the Review Team, October 1998.
124
Cook, Rebecca J., International Protection of Women’s Reproductive Right, International Law and
Politics, Vol.24:645, 1992; Rebecca J. Cook, Human Rights and reproductive Self-Determination, The
American University Law Review, Vol.44:975, 1995; Cook, Rebecca J., and Fathalla, Mahmoud F,. Duties
to implement Reproductive Rights, Nordic Journal of International Law, Vol. 67, 1998.
officers are often involved, and contracts are delicate. These agreements demand that
women endure all the childbearing pain and that they finally give away the child. The
Supplementary Moms also do not know about their legal rights, and they cannot afford the
services of lawyers because of their financial condition. Once the mother surrogate signed
the agreement, they cannot escape.125

Smolin, in his work on adoption and surrogacy, tried to establish certain crucial aspects
related to both the alternative means of having a family. Smolin states that inter-country
adoption cannot be a means to address the problem of poverty. The author rejects the
argument that inter-country adoption is a humanitarian task to aid the children leaving in
extreme poverty; because such transfer are firstly, often motivated by financial gains; and
secondly, goes against the mandates of child right convention, UN declaration on adoption
as well as Hague Convention on inter-country adoption. Smolin explains that inter-country
adoption can amount to child trafficking.126

Shabeer Ali. H and Dr Asha Sundaram (2018) analyzed both positive and negative
aspects of surgery to make it legal and legal in the country and induce society to rejoice
eventually. They concentrated primarily on the happiness of surgery and also on
commercial surrogacy, which is a good choice for both the starting couples and the
surrogate mother as both benefits from this. The authors compared various international
laws to India and concluded that substitutes in India should have legal standing.
Commercial surrogacy is a positive option to other surrogacy methods. It is a pleasure for
the community, and surrogacy in metropolitan areas is more effective than other infertility
treatments.127

125
Kembrell, "The Human Body Shop: The Engineering and Marketing of Life", New York: Harper San
Francisco; (1993).
126
Smolin, David M., Child Laundering: How The Inter-country Adoption System Legitimizes And
Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, The Wayne Law
Review, Vol. 52:113; 2006; Smolin, David M., Inter-country Adoption as Child Trafficking, Valparaiso
University Law Review, Vol. 39, No. 2, 281-325, 2004; Smolin, David M., The Two Faces of Inter-country
Adoption: The Significance of the Indian Adoption Scandals, Seton Hall Law Review, Vol. 35:403, 2005;
Smolin, David M., Inter-country Adoption and Poverty: A Human Rights Analysis, Capital University Law
Review, 36:413, 2007; Smolin, David M., Surrogacy as the Sale of Children: Applying Lessons Learned
from Adoption to the Regulation of the Surrogacy Industry's Global Marketing of Children, Pepperdine Law
Review, Vol. 43: 265, 2016.
127
Shabeer Ali. H, Dr.Asha Sundaram, "Commercialization of Surrogacy in India &; Its Legal Context: A
Critical Study with Regard to Baby Manji Yamada's Case", International Journal of Pure and Applied
Mathematics, Vol. 120 (5), page no. 4137-4154, (2018).
Wasif Reza Mola (2018) discussed the numerous legal and ethical questions concerning
commercial substitutes in India. He addressed India's legislative history of surrogacy and
examined how the bill's provision on surrogacy (Regulation) 2016 avoids business
surrogacy in India and how both surrogates and babies are put at extreme risk by these
unethical activities.128

Suketu V. Shah (2016) explained various surgery questions and raised legal,
psychological, religious, ethical, general and health concerns. The author also dealt with
mother and child surrogates' rights and the government's initiative to improve substitute
status and their rights in India. He concludes that an infant is procreating is a thankful gift
to mothers who cannot conceive a child in the womb of the substitute.129

Pyali Chatterjee (2015) believes that reproductive rights are elementary human rights
provided in Article 16(1) of the Universal Declaration of Human Rights,1948. The couple
who are medically ill couples were also able to apply their reproductive rights through this
mechanism after developing assisted reproductive techniques. Through using this
procedure, not only will the engaged couples benefit, but the poverty-stricken female will
also gain money by making her as a substitute mother or by being an egg donor for the
indentured couples. Besides, making of stringent legislation is need of hour, and the
Assisted Reproductive Technologies(ART) Bill should be adopted promptly to control this
procedure and guard the right and existence of the substitute mother and that of the
contributor of egg.130

Anu, Pawan Kumar, Deep Inder and Nandini Sharma (2013) discussed the sense of
surrogacy regarding paternity problems and right to health of a woman. To protect and
direct couples wanting to follow this procedure, the government should consider
implementing a law regulating surgical services in India, as patients are misled, and
substitutes are abused without a legal framework.131

128
Wasif Reza Molla, ―Commercial Surrogacy: A Challenge to Motherhood‖, International Journal of Law,
Vol. 4(2), page no. 207-210, (2018).
129
Suketu V. Shah, "Issues of Surrogacy in India", International Journal of Culture and History, Vol. 2(4),
page no. 173-177, (2016).
130
Pyali Chatterjee, "Role of Law Relating to Commercial Surrogacy in India and Protection of Surrogate
Mother", International Journal of Recent Scientific Research, Vol. 6(9), page no. 6187-6192, (2015).
131
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, "Surrogacy And Women's Right to Health in India:
Issues and Perspective", Indian Journal of Public Health, Vol. 57(2), page no. 65-70, (2013).
The Social Research Center (CSR), a New Delhi based advocacy group of women,
examined that the industry seems more readily available to foreign travelers from towns to
mega towns such as Mumbai & New Delhi with higher quality healthcare facilities. The
study "Motherhood of Surrogacy: ethical and market" compiled by the Social Research
Centre, with the Ministry of Women and Children's Development's help, explained that the
surrogacy sector has turned into a "commercial industry." The CSR report documents
some troubling circumstances. Even if the government has a course of action for assisted
breeding clinics, instructions remain uncertain, and existing legislation does not include
adequate security for poor, mostly uneducated women drafted as incubators or for
resulting children who are mainly transferred to foreign clients.

Arjun Pal (2019) focused on two main types of surrogacies, gestational surrogacy (also
known as host or full surrogacy1) which was first achieved in April 1986 2 and traditional
surrogacy (also known as partial, genetic, or straight surrogacy). But with all this comes
the question of Child Rights for e.g., “who has the rights to the child conceived via
surrogacy?”; “Is the surrogate mother the legal guardian of the child?” and so on.132

Mia Dambach and Nigel Cantwell (2022) provided a chapter explaining the different
issues linked to the child’s right to identity in surrogacy arrangements by examining
multiple country contexts. Knowing who you are and where you come are fundamental
existential considerations rooted in one’s identity. Lack of, or loss of, one’s identity can
severely impact one’s sense of self-knowledge, well-being and belonging. In surrogacy
matters in particular, given the multiple contributors to the child’s identity, it is of utmost
importance that all elements are preserved pre- and post-birth. At the outset, it should be
noted, that the right to identity is independent of the circumstances relating to the child’s
birth and to any subsequent discriminatory practices.133

Kirsty Horsey in 2023, provided that the practice of surrogacy is not going to stop. Nor
should it, when it is known that models of good practice exist in which surrogacy can be
demonstrated to be a legitimate form of family building. There are some who will never
sway from the belief that surrogacy is inconsistent with human dignity and exemplifies
commodification of reproductive capacities, women and children. Some will also enter

132
Arjun Pal Child rights and Surrogacy, Available at SSRN: https://ssrn.com/abstract=3492916 or
http://dx.doi.org/10.2139/ssrn.3492916.
133
Mia Dambach and Nigel Cantwell, CHAPTER 6: Child’s right to identity in surrogacy,
https://www.child-identity.org/images/files/chip-surrogacy-md-nc.pdf.
illegal arrangements where legal ones are not available, either in their own country or
internationally, as we already know from the numbers of IPs travelling to surrogacy
destinations from countries where it is prohibited domestically. Not only does this increase
the risk of women being exploited or even trafficked, it can also make surrogates and IPs
vulnerable to exploitation from criminal activities.134

A Report on Children’s rights related to surrogacy by Committee on Social Affairs,

Belgium stated the importance of putting the best interests of the child first in surrogacy.
There is a lack of a multilateral legal instrument on parentage related to surrogacy
increases the risk of children’s rights abuses. For-profit surrogacy arrangements are
defined by the HCCH defining a for-profit surrogacy arrangement is that the surrogate
receives financial remuneration from the intending parents which goes beyond “reasonable
expenses”. Thus it is clear that the child cannot be blamed for being born out of a
surrogacy arrangement; thus, the rights of the child cannot be curtailed simply because the
intending parents flouted national law when it forbids surrogacy.135

Mia Dambach and Nigel Cantwell explained the identity crises of Child in Surrogacy as
a matter of violation of child`s right. The child’s right to identity is of crucial importance
as a standalone right and provides grave legal, psychosocial and medical life-long
implications when fundamental information is missing and/or falsified. Its protection is
equally vital, given that it is the gateway to other basic rights. There are variety of ways in
which the risks of rights violations are heightened in surrogacy arrangements, given that
the great majority of decisions relevant for the child’s identity occur pre-birth or shortly
after. Clearly, much work is required to align laws, policies and practices with
international standards, notably Art. 8(1) CRC to preserve genetic, gestational, social and
legal origins of the child. The lack of compliance has led to much damage that will leave a
generation of children with missing and/or falsified elements of their identities. States are
urgently required to rectify this situation through proper safeguards as well as to introduce
mechanisms to speedily re-establish the child’s identity as required in Art. 8(2) CRC.136
134
Kirsty Horsey, Kent Law School, University of Kent, Canterbury, The future of surrogacy: a review of
current global trends and national landscapes, Reproductive BioMedicine Online, December 2023,
https://doi.org/10.1016/j.rbmo.2023.103764.
135
Children’s rights related to surrogacy, Report by Committee on Social Affairs, Health and Sustainable
Development Rapporteur: Ms Petra De SUTTER, Belgium, Socialist Group, 2016, Reference to committee:
Doc. 13562, Reference 4071 of 3 October 2014.
136
Mia Dambach and Nigel Cantwell, Child’s right to identity in surrogacy in Research Handbook on
Surrogacy (eds. Katarina Trimmings, Sharon Shakargy & Claire Achmad; Edward Elgar Publishing Ltd),
2023.
Anne Casperson in her Research work elaborate the child`s interest in surrogacy
practice.According to the researcher the best interest of the child should always be the
priority when it comes to surrogacy. Here a Model Child right`s Convention can be good
guideline. Another suggestion from the researcher is to establishment of Screening system
similar to adoption procedure as to ascertain the eligible intended parents. The aim for
such screening is to provide the intended parents’ ability
to take care of a child in a decent way.
Hemant Singh and Dr. Abhishek Baplawat in their research work provided the view of
the Constitutional status of Surrogacy and mirrored the fundamental rights for the
Surrogate Child. The researcher focused on the role of Judiciary in India has
acknowledged the fundamental right to reproductive autonomy for individuals. Article 21
of the Constitution has broadened the right to life by recognizing surrogacy. The
interpretation of 'Personal Liberty' in Article 21 is extensive, encompassing various rights
that contribute to an individual's personal liberty. The right to life goes beyond mere
existence and includes the right to live with human dignity. Any implicit right to privacy
under Article 21 should protect a citizen's personal intimacies related to family, marriage,
procreation, motherhood, and child-rearing.137
With the constitutional protection of reproductive rights, surrogacy, as a means for
infertile couples to exercise these rights, also gains constitutional protection. An infertile
couple cannot be denied the right to life, especially if they experience depression due to
childlessness, and surrogacy provides an option for them to have a child. It can be argued
that surrogacy further facilitates the right to procreation and the establishment of a family,
implicitly guaranteed under Article 21.138

1.20. Problem Profile

The research problem related to surrogacy is multifaceted and complex, with various
ethical, legal, social, and psychological dimensions. One key issue is the potential
exploitation of women who serve as surrogates. Critics argue that surrogacy arrangements
commodify women's bodies and may lead to coercion, particularly in cases where
surrogates come from disadvantaged backgrounds and may be financially or socially
coerced into participating in the process. There is also concern that surrogacy
arrangements may exacerbate social and economic inequalities, particularly in cases where
137
Mr. Hemant Singh and Dr. Abhishek Baplawat, Surrogacy in Perspective of Indian Society: Issues and
Challenges, 2019 IJRAR March 2019, Volume 6, Issue 1.
138
Ibid.
surrogacy is primarily available to those who can afford it. Another research problem
relates to the impact of surrogacy on the well-being of the surrogate, intended parents, and
child. Surrogacy arrangements can be emotionally complex, and there is a need to
understand how these arrangements impact attachment, grief, and identity formation, as
well as the potential long-term psychological outcomes of surrogacy for all parties
involved. Additionally, there is a need to examine the impact of surrogacy on family
dynamics, particularly in cases where the intended parents are not biologically related to
the child.

Another key research problem relates to the legal framework surrounding surrogacy.
Different countries and states have different approaches to surrogacy regulation, and there
is a need to examine the impact of these regulations on the rights and responsibilities of
the surrogate, intended parents, and child. There is also a need to address legal issues
related to custody and the surrogate's right to change her mind, particularly in cases where
the intended parents have already paid for the surrogacy arrangement. Finally, there is a
research problem related to the social and cultural attitudes towards surrogacy. There are a
variety of factors that influence attitudes towards surrogacy, including gender roles,
religious beliefs, and political ideologies, and there is a need to understand how these
factors impact the acceptance and availability of surrogacy as a form of assisted
reproductive technology. To conclude, the research problem related to surrogacy is
complex and multifaceted, requiring a multidisciplinary approach that considers legal,
ethical, social, and psychological perspectives. By addressing these issues through
research, we can gain a deeper understanding of the implications of surrogacy and work
towards developing more just and equitable policies and practices surrounding the
practice.

1.21. Research Hypothesis

1. Surrogacy arrangements that are regulated with strict ethical guidelines lead
tobetter outcomes for children's welfare compared to unregulated surrogacy
practices.
 2. Countries with comprehensive and standardized surrogacy laws experience fewer
legal disputes and better protection of all parties' rights compared to countries with
fragmented or absent surrogacy legislation.

3. In societies with higher social acceptance of surrogacy, there is greater support and
integration for children born through surrogacy, leading to more positive social
outcomes for these children.

4. Children born through surrogacy who have access to information about their
origins and a supportive environment are more likely to develop a positive sense of
identity and well-being.

1.22. Research Objectives

The main objectives of this study are as follows:

1. To evaluate the impact of regulated surrogacy arrangements on children's welfare.

2. To compare the effectiveness of surrogacy laws in India and the US in protecting the
rights of all parties.

3. To analyze the role of social acceptance in the integration and well-being of children
born through surrogacy.

4. To investigate the effects of identity disclosure on the well-being and identity formation
of surrogacy-born children.

1.23. Significance of the study

Child rights and surrogacy are complex and interrelated topics that raise important ethical,
legal, and social considerations. Surrogacy is a reproductive arrangement in which a
woman (the surrogate) carries and gives birth to a child on behalf of another person or
couple (the intended parents). This practice can involve various forms, including
traditional surrogacy and gestational surrogacy, each with its own set of ethical and legal
implications. Every child has the right to know their biological and genetic origins. In
traditional surrogacy, where the surrogate is also the genetic mother of the child, this right
can be straightforwardly upheld. However, in gestational surrogacy, where the surrogate is
not genetically related to the child, ensuring the child's right to know their genetic heritage
can be more complex.

The best interests of the child should always be a primary consideration in surrogacy
arrangements. Decisions should be made with the child's well-being in mind, including
their physical, emotional, and psychological needs. Ethical surrogacy arrangements
require informed and voluntary consent from all parties involved, including the surrogate,
the intended parents, and any sperm or egg donors. Ensuring that surrogates are not
coerced or exploited is crucial to protect their rights and the child's rights. Laws and
regulations regarding surrogacy vary widely between countries and even within states or
regions. Legal frameworks must address issues such as parentage, custody, and the rights
and responsibilities of all parties involved. Clear legal guidelines help protect the rights of
the child and all those involved.

Surrogacy should not violate a child's right to a family life. This means that the child
should have the opportunity to grow up in a stable, loving environment with parents who
are capable of providing for their needs.

International surrogacy arrangements can pose additional challenges, as they may involve
different legal systems and potential risks for the child's rights. Countries often have
differing approaches to surrogacy, and international surrogacy can sometimes lead to legal
and ethical dilemmas. Many countries have regulatory bodies or authorities responsible for
overseeing surrogacy arrangements. These bodies aim to protect the rights and interests of
all parties involved, especially the child's rights. Procedures for establishing the legal
parentage of the child born through surrogacy, including birth certificates and adoption or
parentage orders, must be clearly defined to ensure the child's rights are upheld. In
summary, the intersection of child rights and surrogacy is a complex and evolving field.
Ethical surrogacy arrangements prioritize the best interests of the child, protect the rights
and autonomy of surrogates and intended parents, and adhere to clear legal frameworks.
Regulations and guidelines should be designed to address the unique challenges presented
by surrogacy while ensuring that the child's rights to identity, family life, and well-being
are respected and protected.

1.24. Research Methodology

For the completion of the research, the research is opting for the Doctrinal method of
research. Wherein the researcher will begin by identifying relevant legal materials, such as
statutes, court decisions, regulations, and legal textbooks, which pertain to the specific
legal issue they are investigating. Further for the collection of the research will be from
Primary as well as secondary sources. The data will be gathered from research papers
published in reputed journals with adequate citations, available data at both national and
international levels, reports published by governmental, intergovernmental and non-
governmental organisations, judicial decisions, surrogacy and ART laws, policies and
administrative directions, international and national laws related to surrogacy practice,
project reports as well as country reports and observations made

by UN primary and subsidiary bodies. Analytical methods will be used to compare and
make analysis of the laws of select jurisdictions. Historical inquiries wherever required
and deemed essential in order to capture the gradual development of the surrogacy
practice. Has also been made. In this research, the doctrinal method was suitable in order
to understand the human right perspective of surrogacy arrangement by using analytical,
interpretative techniques and legal reasoning.

1.25. Tentative Chapter-wise Scheme

Chapter 1: Introduction

Chapter 2: Historical Background of rights of surrogates and guidelines on Child Welfare

Chapter 3: Comparative Analysis of Legal Dimensions of Surrogacy Laws in India and

US.

Chapter 4: Legal Safeguards to Identity and Well-being of Children Born Through

Surrogacy

Chapter 5: Analysis of norms relating to Social Acceptance and Integration of Surrogacy

Children

Chapter 6: Conclusion and Future Scope of the Study

1.26. Proposed plan for Research

⇨
Month and year August 2023 January 2024 August 2024 January 2025 July 2025
to to
to to to Dec 2025
Dec 2023 July 2024
Dec 2024 July 2025

Literature Review
and Synopsis

Starting of
Research Work

Completion of
Chapter 1 & 2,

Presentation of
Paper

Completion of
Chapter 3 & 4,

Publication of
Research Paper

Completion of
Chapter 5,

Presentation of
Paper

Data Analysis

Compilation and
Thesis Writing