DHARMASHASTRA NATIONAL LAW UNIVERSITY,

JABALPUR, MP

Academic Session (2020-2021)

TOPIC - HUMAN RIGHTS ISSUES INVOLVED IN

SURROGACY ARRANGMENT.

SUBMITTED TO: SUBMITTED

BY:

Dr. Veena Roshan Jose NITIN SONI

1
(ASSISTANT PROFESSOR OF LAW) BAL/061/18

B.A.LLB(HONS.)

ACKNOWLEDGEMENT

With Due Respect I would like to extend my gratitude to Dr. Veena Roshan Jose, Assistant
Professor of Law, for guiding and helping me throughout the research work. Without her able
support I would not have been able to successfully mark the completion of this project. She
has helped me in every possible manner she can. I thank her for giving her precious time to
make this project concise and correct.

Regards

Nitin Soni

BAL/061/18

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TABLE OF CONTENTS

ACKNOWLEDGEMENT..................................................................................................................2
LIST OF ABBREVIATION...............................................................................................................4
RESEARCH METHODOLOGY.......................................................................................................5
OBJECTIVES..................................................................................................................................5
HYPOTHESIS.............................................................................................................................5
INTRODUCTION...............................................................................................................................6
BACKGROUND OF THE TOPIC.....................................................................................................9
THE MAIN LEGAL PROBLEM.....................................................................................................10
HUMAN RIGHTS AND SURROGACY.........................................................................................12
Rights of The Surrogate................................................................................................................12
The Rights of the Commissioning Parents...................................................................................14
The Rights of the Child.....................................................................................................................15
Right to Dignity and the Prohibition of Sale of Children...........................................................17
LEGAL FRAMEWORK RELATED TO SURROGACY..............................................................18
CONCLUSION..................................................................................................................................20
BIBLIOGRAPHY..............................................................................................................................21

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LIST OF ABBREVIATION

1. ECHR – European Convention on Human Rights.

2. ECtHR – European Court of Human Rights.
3. CRC – Convention on Rights of Child.
4. ICS – International Commercial Surrogacy
5. PIL – Public International Law.
6. UN – United Nation.
7. UK – United Kingdom.
8. IVF – In Vitro Fertilisation.

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RESEARCH METHODOLOGY

OBJECTIVES

• To know about the human rights violation in commercial surrogacy.

. To understand about the problem of conflict of law in global surrogacy arrangement.

• To analyse the effect made by UN Conventions on Surrogacy.

• To suggest how to overcome the human right violation made by surrogacy arrangement.

HYPOTHESIS

Surrogacy is the gift of technological advancement but the number of global surrogacy
arrangements increased exponentially over the last decade, and the rise in the practice has led
to concerns over issues such as social justice, exploitation, and human rights abuses.

RESEARCH QUESTIONS

1. Can international human rights be enough for the protection of child born out of
surrogacy?
2. How the fourth-generation human right violated in surrogacy arrangement?

INTRODUCTION

5
Human rights are universal and binding and are codified in a body of international law.
Respecting human rights is required of both governments and companies alike, although
governments have additional obligations to protect and fulfil human rights. There is an entire
system of regional, international, and domestic institutions and organizations that provide
well developed frameworks for remedy and articulate the application of human rights law to
changing circumstances, including technological developments. And in cases where domestic
law is lacking, the moral legitimacy of human rights carries significant normative power.
Violating human rights carries global reputational and political costs and naming and
shaming human rights violators is often an effective tool. 1 Surrogacy as a reproductive
practice is on the rise. It refers to a form of third-party reproductive practice in which
intending parent(s) contract a surrogate mother to give birth to a child. While modern
practices of surrogacy offer new reproductive opportunities, they also introduce new legal
and ethical dilemmas. Furthermore, the international regulatory vacuum that exists in relation
to international surrogacy arrangements leaves children born through this method vulnerable
to breaches of their rights, and the practice may often amount to the sale of children. With a
growing industry driven by demand, surrogacy is an area of concern for the rights and
protection of the child.2 Currently, there are no international regulations or guidelines
regarding global surrogacy arrangements, and in some countries where the practice is
prevalent, i.e., India, there is limited national regulation or oversight. Global surrogacy is a
complex issue that includes questions related to morality, parentage, the natural mother–
infant bond, and the complexities of inequalities in a globalized world that interface with a
multi-million-dollar industry. The purpose of the paper is to present global surrogacy
dynamics written in a manner to help the reader understand this complex phenomenon,
including a discussion of the associated problems and ethical dilemmas.3

The case of the Balaz twins, commissioned by German citizens in India, reveals the
consequences that ensue when individuals ground a basic activity of life having children
simultaneously in legal systems whose rules conflict, Caught between German prohibitions
regarding surrogacy and Indian policies seeking to promote the market in baby making,4

1
Blauwhoff, R. and Frohn, L., 2016. International Commercial Surrogacy Arrangements: The Interests of the
Child as a Concern of Both Human Rights and Private International Law. In Fundamental rights in
international and European law (pp. 211-241). TMC Asser Press, The Hague.
2
Ibid.
3
Ibid.
4
Hillary Brenhouse, India’s Rent-a-Womb Industry Faces New Restrictions, TIME (June 5, 2010),
http://www.time.com/time/world/article/0,8599,1993665,00.html (“In 2002 [India] legalized commercial
surrogacy in an effort to promote medical tourism ”).

6
Leonard and Nikolas Balaz appeared destined to become wards of the Indian state. The
agreement commissioning their birth, a contract ostensibly governing all parties, was written
exclusively by private actors.5 This arrangement treated filiation as a matter of contract rather
than status, whereas the regulation of reproduction and familial relations bears the imprints of
nation-building and social policies and as such is not simply a matter subject to individual
negotiation6 Resolutions to dramas like that of the Balaz twins require interstate coordination,
possibly in the form of an agreement on international commercial surrogacy, Such an
agreement requires negotiations over deeply held values that, in many states, implicate
constitutional principles and may have significant distributive consequences.7 Moreover,
family relations, filiation, and their nexus to nationality and citizenship lie at the heart of
what has traditionally been understood as the domestic jurisdiction of states. 8 Despite the
progressive expansion of the scope of international law,9 the often documented erosion of the
Westphalian system the “basic constitutional doctrine of the law of nations” 10 and the
contested nature of the distinction between matters that appropriately fall within the reserved
domain of state jurisdiction and those that do not, when “an issue is prima facie within the
reserved domain because of its nature and the issue presented in the normal case then certain
presumptions against any restrictions on that domain may be created.”11

“Consequently, while matters relating to domestic relations and to citizenship have been the
subject of treaties, it is nonetheless likely that both national and international policymakers
and courts will tread carefully. A global accord capable of imposing uniform regulations on
the transnational surrogacy market is therefore difficult to envisage, but a bifurcated regime,
based on the reciprocal acknowledgment of a permissive and a prohibitionist “treaty zone,”
seems more likely. Both states and individuals operating in a bifurcated regime must be
understood as indeed, can already be seen to be apprehending the regime in a unitary manner,
deriving advantages from, as well as bearing the consequences of, its segmentation. But the
possibility of interstate agreement does not per se determine the legality of the accords or of
the overarching regime that therefore emerges. On the contrary, such agreements will be held
to the test of international human rights law, and whether they hold up will depend on the

5
Balaz v. Anand Municipality, LPA 2151/2009 (Gujarat H.C. 2009) para. 2
6
Ibid Note 4.
7
Ibid.
8
Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 20 (Apr. 6).
9
Wolfgang Friedmann, The Changing Dimensions of International Law, 62 COLUM. L. REV. 1147 (1962).
10
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 291 (7th ed. 2008).
11
Ibid.

7
specific understandings of surrogacy and filiation as well as of human rights that legislators,
administrators, and judiciaries deve lop in dialogue with political and civil society actors.”12

In 2008, Baby Manji a child commissioned by a Japanese couple who divorced prior to her
birth had been prevented from being expatriated by the conjoined operation of Japanese rules
that prohibit surrogacy and Indian rules that restrict adoption. 13 Ultimately, India agreed to
allow the child to be entrusted to her father and paternal grandmother; 14 concomitantly, the
Japanese authorities issued a special visa on humanitarian grounds, the implication again
being that this decision was not to be regarded as setting precedent.15 More recently, a
Canadian couple failed to obtain travel documents for twins they had commissioned: DNA
tests required by the Canadian authorities revealed that neither intended parent was
genetically related to one of the children, suggesting a medical error in the Indian fertility
lab.16 Ottawa ultimately issued a citizenship card to the twin who is biologically related to the
couple and travel papers to the other child, with the apparent understanding that the family
would file an application on humanitarian and compassionate grounds for their non-
biological child and then a citizenship application. 17 Taken together these cases have
highlighted a lack of legal certainty that may ultimately undermine the demand for Indian
reproductive surrogacy services while heightening the financial costs associated with the
risks of uncertainty. They have also revealed the human costs of the collisions that can occur
when “exporting” and “importing” states pursue conflicting policies.18

India appears engaged in an ongoing review of the legal framework governing surrogacy. 19
This process is complicated not simply by the federal structure of the state, but also by the
role of personal law, for Indian citizens may be subject to the jurisdiction of
communal/religious authorities in regard to their domestic relations.20 Even more, there
continues to be substantial debate within India regarding the desirability of legalizing

12
Bromfield, N.F. and Rotabi, K.S., 2014. Global surrogacy, exploitation, human rights and international private
law: a pragmatic stance and policy recommendations. Global Social Welfare, 1(3), pp.123-135.
13
Balaz v. Anand Municipality, supra note 2, para. 16.
14
The Citizenship (Amendment) Act, 2003, No. 4, Acts of Parliament, 2004 (India).
15
Supra Note 2.
16
Supra Note 2.
17
Supra Note 2.
18
Ibid 12.
19
Govt Proposes To Bring Bill To Regulate Surrogacy: Azad, THE HINDU (March 19, 2013),
http://www.thehindu.com/news/national/govt-proposes-to-bring-bill-to-regulate-surrogacy-azad/article45255
57.ece.
20
Narendra Subramanian, Making Family and Nation: Hindu Marriage Law in Early Postcolonial India, 69 J.
ASIAN STUD. 771 (2010)

8
surrogacy itself, and the conditions that ought to be imposed.21 Attempts to bring order to
surrogacy are therefore caught between two conflicting trends: one favouring India’s
economic use of the reproductive capacities of women in an extension of the health tourism
that has been actively fostered; the other highlighting fears of exploitation, in particular in
regard to women, concerns regarding the status of the children born of surrogacy
arrangements, hetero-normative concerns regarding access to surrogacy services, and
fundamental objections to an industry that can be characterized as the production of children
for export.22 Legislative reform could provide the legal certainty necessary for India to
maintain, or even increase, its market share. But as the cases referred to above demonstrate,
the problem is not solely that of the internal consistency and overall coordination of the
Indian legal framework. At issue here is the coherence of the Indian legal system with that of
the other market participants.23

BACKGROUND OF THE TOPIC

Recent developments and research in the area of reproductive medicine have resulted in
various treatment options becoming available to infertile couples, One of them is the use of a
surrogate mother in cases where the female partner of a couple is unable to carry a child.
Surrogacy attained public visibility over two decades ago, in the mid-1980s,24 through the
notorious cases of Baby Cotton25 in the United Kingdom and Baby M 26 in the United States.
Since then, despite controversies over ethical aspects of surrogate motherhood, 27 surrogacy
has become an increasingly popular method of reproductive technology. 28 Surrogacy targets
the same clientele as its counterpart, adoption. 29 It follows that with an increasingly limited

21
Anil Malhotra, Legalising Surrogacy—Boon or Bane?, L. RESOURCE INDIA (July 14, 2010, 11:54 PM),
http://indialawyers.wordpress.com/2010/07/page/2;
22
Booming Baby Business: Regulating Commercial Surrogacy in India, 30 U. PA. J. INT’L L. 1429 (2009).
23
Ibid.
24
Susan Markens, Surrogate Motherhood and the Politics of Reproduction (University of California Press,
2007), 9.
25
Re C (A Minor) (wardship: surrogacy) [1985] FLR 846 (Latey, J.)
26
Matter of Baby M (1988, N J) 537 A2d 1227.
27
M Freeman, “Is Surrogacy Exploitative?” in S McLean (ed), Legal Issues in Human Reproduction (Dartmouth
Publishing, 1989), 164.
28
LA Brill, “When Will the Law Catch Up with Technology? Jaycee B v Superior Court of Orange County: An
Urgent Cry for Legislation on Gestational Surrogacy” (1999–2000) 39 Catholic Lawyer 241, 241.
29
I Lebowitz-Dori “Womb for Rent: The Future of International Trade in Surrogacy” (1997) 6 Minnesota
Journal of Global Trade 329, 329.

9
global market for adoption,30 surrogacy will continue expanding. 31 It is no exaggeration to say
that the modern world has already witnessed a development of an extensive international
surrogacy market.32 This market, although initially largely unnoticed, has recently attracted a
great deal of interest by the media.33

“A surrogate mother can be defined as a woman who carries a child pursuant to an

arrangement made before she became pregnant, and made with the sole intention of the
resulting child being handed over to another person or other persons and the surrogate mother
relinquishing all rights to the child. There are two types of surrogacy: traditional surrogacy
and gestational surrogacy. In traditional surrogacy, the surrogate mother becomes pregnant
with the sperm of the intended father (usually by insemination, and seldom through sexual
intercourse) or is inseminated with a donor sperm. The surrogate mother is genetically related
to the child. In gestational surrogacy, an embryo is created by in vitro fertilisation using the
egg of the intended mother (or a donor egg) and the sperm of the intended father (or a donor
sperm). As a result, the surrogate mother has no genetic relationship with the child. In the
context of gestational surrogacy, the surrogate mother is sometimes referred to as ‘a
gestational carrier, gestational surrogate or gestational host’.”34

THE MAIN LEGAL PROBLEM

Surrogacy as such is an inherently complex phenomenon with multifaceted emotional,

ethical, social and legal issues. Matters are complicated further in the international context as
a result of divergent international regulation, as some states may be labelled as
‘prohibitionist’ to varying degrees while in a minority of ‘surrogacy-friendly’ states (such as
India, Russia, Ukraine) the establishment of legal parentage in favour of the intended parents
may be perfectly lawful, Various studies35 have confirmed that there exist great differences in
30
N Cantwell, UNICEF Innocenti Research Centre, “Intercountry Adoption – A Comment on the Number of
‘Adoptable’ Children and the Number of Persons Seeking to Adopt Internationally” (Spring 2003) V The
Judges’ Newsletter (published by the Hague Conference) 69, 72, http://hcch.e-vision.nl/upload/spring2003.pdf,
accessed 14 March 2021.
31
T Krim, “Beyond Baby M: International Perspectives on Gestational Surrogacy and the Demise of the Unitary
Biological Mother” (1996) 5 Annals of Health Law 193, 225.
32
S Thakur, “Mother for Only Nine Months’, BBC News, 21 March 2008, http://
news.bbc.co.uk/1/hi/world/south_asia/7202043.stm, accessed 17 March 2021
33
V Browne-Barbour, “Bartering for Babies: Are Preconception Agreements in the Best Interest of Children?”
(2004) 26 Whittier Law Review 429, 436.
34
AG McEwen, “So You’re Having Another Woman’s Baby: Economics and Exploitation in Gestational
Surrogacy” (1999) 32 Vanderbilt Journal of Transnational Law 271, 278.
35
R Rao, “Surrogacy Law in the United States: The Outcome of Ambivalence” in R Cook, SD Sclater and F
Kaganas (eds), Surrogate Motherhood: International Perspectives (Hart Publishing, 2003)

10
regulation. Some states may be regarded as ‘staunchly prohibitionist’ such as France, Italy or
Sweden, whereas other states expressly permit ICS arrangements such as California, Ukraine
or India. In addition, there are countries which allow some (non-commercial) forms of
surrogacy (such as England, Greece) and others where the phenomenon quite simply still
lacks clear regulation (such as Thailand before the Baby Gammy case).

It is questionable whether a prohibitionist national policy such as that of France may be

enforced in a cross-border context. This is not only the expected outcome of the increased
access to surrogacy, but could also be the outcome of a restricted discretion for states to rely
on order public in the aftermath of the two recent ECHR decisions with regard to
international surrogacy, which will be discussed below. Once the child is born and has
‘settled’ in the state of the intended parents, which is likely to be a ‘prohibitionist’ state, and
birth certificates stating the commissioning parents as the legal parents have issued made in
accordance with the laws of the ‘permissive’ state of the habitual residence of the surrogate
mother, the child’s interests in concrete legal proceedings, as protected by Article 3 UN CRC
and the child’s right to private life under Article 8 ECHR, could compel more and more states
to become more permissive. This could be the case even if the margin of appreciation
doctrine espoused by the ECHR may not require ‘prohibitionist’ states directly to amend their
national parentage law, PIL and the conditions for recognition of foreign birth certificates
accordingly.36

Travel from prohibitionist to permissive states is likely to continue. Indeed, the majority of
intended parents in ICS are Western couples who are childless or have fertility problems, and
who are lured by the low costs and permissive position or lack of regulation of some
developing countries with regard to ICS. Nonetheless, disparities in wealth are only part of
the explanation, as some ‘wealthy’ jurisdictions such as California and Ontario, also permit
forms of ICS and may similarly appeal to couples with a child wish.37

Analogies may, to some extent, be drawn with adoption. ICS often provides a viable and
attractive alternative to adoption for many, as it may (though not necessarily so) lead to the
birth of a child that is genetically related to one of the commissioning parents, typically the

36
Blauwhoff, R. and Frohn, L., 2016. International Commercial Surrogacy Arrangements: The Interests of the
Child as a Concern of Both Human Rights and Private International Law. In Fundamental rights in
international and European law (pp. 211-241). TMC Asser Press, The Hague.
37
Ibid.

11
father. Yet the (glaring) absence of international regulation regarding ICS arrangements may
also be a reason why it is perceived by some as being more attractive than adoption.38

So much seems clear that divergent approaches taken at the national level with regard to
surrogacy cause considerable legal uncertainty as international regulation is absent. Such
legal uncertainty may afflict all those involved: the child (which notably include nationality
and statelessness issues, migration issues and legal parentage issues), the intended parents
(regarding their status as parents, since it may be far from certain that they will be treated as
the legal parents in their country of origin) and the surrogate mother (can she, for example,
change her mind and ‘keep the child’ after the child is born? What sort of financial
compensation or remuneration would be appropriate and how can this sum be claimed within
and beyond her own jurisdiction if disputed by the commissioning parents?).39

HUMAN RIGHTS AND SURROGACY

Over the year the surrogacy is growing rapidly, increase in the surrogacy arrangement also
increases the Human Rights concerns, we see there are many legal issues involved in the
surrogacy arrangement like the conflict of law, Human Rights violation etc; in which the
human right concern is very serious because here in the surrogacy arrangement not only the
surrogate woman’s rights involved but also there are the Rights of the child born out of
surrogacy. So we discuss below the human rights concern in the surrogacy arrangement.

Rights of The Surrogate

It is accepted that the surrogate mother under no circumstances should be forced by the
commissioning parents or by anyone else to enter into a surrogate contract, or be subjected to
restrictive conditions during and after the pregnancy, Concerns related to ICS arrangements
in India especially have been found not to be merely theoretical but substantiated by
empirical findings.40 In addition, there may be concerns over the physical well-being of
surrogate mothers.41 The imposition on the surrogate, as the gestational carrier of the child, of
a duty to surrender the child to the commissioning parents arguably could be considered

38
Ibid.
39
Ibid.
40
R Deech, “Clones, Ethics and Infertility or Sex, Sheep and Statutes” (1998–99) 2 Quinnipiac Health Law
Journal 133, 133
41
Bala 2014, p. 15. www.yjil.org/docs/pub/o-40-bala.pdf. Accessed 15 March 2021.

12
irreconcilable with prohibitions against cruel punishment and servitude.42 In addition, the sale
of reproductive services could be regarded as contravening prohibitions against using the
body and its parts for financial gain.43 Ideally, the surrogate should be ‘empowered’ in the
sense that she should only enter into such a contract on the basis of an informed right to
autonomy and right to self-determination. Nonetheless, in many if not most cases it will be
questionable whether this goal can be achieved at the level of international regulation, let
alone implementation.44

Thus, it must be acknowledged that the issue of free and informed consent to a surrogate
contract may be illusory for disparate reasons. Some question whether it is possible to give
full informed consent before the child’s birth as regards the transfer of a child, whether
through adoption or surrogacy.45 In addition, impoverished, surrogate mothers may be lured
by the promise of comparatively high remunerations for the ‘due’ performance of the
contract, especially in countries such as India.

It is conceivable that the commissioning parents could insist on certain unethical conditions
with regard to the health and other qualities of the child, or express them after the birth of the
child, as the recent Baby Gammy case blatantly shows. However, few would disagree that it
may be exploitative if the costs related to the pregnancy (notably, the provision of adequate
food, medical and hospital costs) would not be able to be recovered at all by the surrogate
mother, Trimmings and Beaumont suggest, for example, that surrogate mothers should be
provided with income for a year, i.e. during pregnancy and in the three months after birth.46

The income would be set at the wages lost if the mother was employed, or if unemployed, at
a fixed sum, e.g. three times the minimum wage in that country. 47 Still, the intended parents
and the surrogate will often not specify what falls under reasonable remuneration of the
surrogate in a prior contract. Accordingly, the boundaries between adequate compensation,
remuneration, commercial exploitation and commodification of the surrogate may sometimes
be indefinite and become blurred.48 Furthermore, particularly in cases where there is a large
divide in a country between the very rich and the very poor, the prospect of earning three
42
Ibid.
43
Trimmings, K. and Beaumont, P., 2011. International surrogacy arrangements: an urgent need for legal
regulation at the international level. Journal of Private International Law, 7(3), pp.627-647.
44
Ibid.
45
Oviedo Convention, Article 21. See also Charter of Fundamental Rights of the EU [2010] OJ C83/389 and
Ergas 2013, p. 435.
46
Ibid
47
D Howe, “International Surrogacy – A Cautionary Tale” (2008) 38 Family Law Journal 61
48
Ibid.

13
times the minimum wage may represent a sum that would never otherwise be hoped for in the
normal course of life.49

In our opinion, the need for international regulation outweighs the debatable advantage that
due to the current lack of regulation, the exploitative sides to ICS arrangements are not being
condoned. Nonetheless, it is questionable whether a PIL instrument should contain a standard
clause regarding the compensation of the surrogate, because this may have the unwelcome
effect of legitimizing the reduction of a woman’s reproductive ability to a mere economic
resource and be inconsistent with human rights concerns.50

Even so, the creation of a PIL instrument could lay down minimum health rules with regard
to the performance of the contract that would be monitored by a central national authority.
This could go some way in protecting the rights of surrogate from a human rights perspective
while having the welcome side effect of protecting the welfare of the nasciturus and the rights
of the (future) child born through an ICS arrangement. 51 Thus, once the surrogate has entered
into the ICS arrangement with the commissioning parents, it is vital to set limits in the
interests of the future child to her right to self-determination, which may be considered to be
an aspect of the surrogate’s right to privacy. 52 These could, for example, require an all-out
ban on smoking and drinking alcohol during pregnancy.

The Rights of the Commissioning Parents

At present, European human rights law does not recognize an enforceable right to find a
family or a right to adoption, nor do adults indeed have any ‘right’ to conceive a genetically
related children.53 Nonetheless, the ECtHR has recognized ‘the right to respect for the
decisions both to have and not to have a child’ and ‘the right of a couple to conceive a child
and to make use of medically assisted procreation for that purpose’ in the context of assisted
pregnancy rather than surrogacy.54 In the Evans case the ECtHR effectively denied the
existence of a right to a genetically related child in the IVF context pursuant to Article 8
ECHR and considered the British ‘bright line’ legislation with regard to the right of the
49
RL Lee, “New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation” (2009)
50
J Chernick, “Memorandum: Is there a Need to Regulate Intercountry Surrogate-Pregnancy Agreements in
Private International Law?”
51
Tobin, J., 2014. To prohibit or permit: What is the (human) rights response to the practice of international
commercial surrogacy. Int'l & Comp. LQ, 63, p.317.
52
X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 29.
53
K Farmer, “International Surrogacy Choices”, 29 June 2009, Ezine articles, http://ezinearticles.com/?
International-Surrogacy-Choices&id=2538590, accessed 14 March 2021.
54
ECtHR E.B. v. France, 22 January 2008, No. 43546/02

14
husband to withdraw his consent to IVF treatment after fertilization of the gametes to fall
within the margin of appreciation of the UK.55 Nonetheless, it appears that a state may
sometimes also have to undertake positive obligations under Article 8 ECHR with regard to
access to artificial insemination facilities, and it is undisputed that a refusal to access artificial
insemination facilities affects the right to private and family life.56

However, if a child is born through an ICS arrangement, the commissioning parents probably
do not have a right to compel the authorities to recognize a family law relationship with the
child per se, even if this relationship is perfectly lawful under the laws of the state of the
surrogate, as this falls within a state’s margin of appreciation. This general conclusion may
tentatively be drawn from the recent ECtHR decisions referred above. At the same time, even
if ‘only’ de facto family life exists between the commissioning parents and the child, this will
require human rights protection under Article 8 ECHR.57

The Rights of the Child

As for the child’s rights, the court has accepted in numerous instances that a child has a ‘vital
interest’ to establish details about their identity. As such, this (underlying) right to ‘identity’,
though not an absolute right, is firmly enshrined in human rights law and incorporates aspects
of parentage, also within the ICS context.58 It follows that the effectuation of this identity
right will be contingent upon the availability and the access to information regarding this
aspect of their identity. Regrettably, however, the ECtHR did not mention identity as
incorporating a right to access to both genetic and gestational origins in the Mennesson and
Labassee cases. Nonetheless, it is reasonable and consistent with its earlier case law to argue
on the basis of this ‘right to an identity’ that the child born through an ICS arrangement
would have a right to establish details about the identity not only of the commissioning
parents but also the surrogate and the genetic parents, whatever their legal relationship to the
child.59 It is submitted that such a right could reasonably be derived from Article 7(1) and
Article 8 CRC as well. The Paradiso decision certainly suggests that this right to establish
details about the identity of one’s parentage potentially extends to the identity of the
surrogate (whose identity incidentally was verifiable and accessible for the child in that case).

55
ECtHR SH and Austria, 3 November 2011, No. 57813/09, para 80.
56
ECtHR Evans v. United Kingdom, 10 April 2007, No. 6339/05, at No. 79 and 90
57
Supra Note 51.
58
ECtHR Mikulic´ v. Croatia, No. 53176/99, 7 February 2002, No. 64.
59
Ibid.

15
Especially, in cases where the identity of the genetic parents is unknown because of
anonymous donation or heterological insemination, this would go some way in helping the
child’s formation of a narrative identity. However, a guarantee of anonymity for the gamete
donor sits uneasily with this right of the child because it precludes access to information
deemed of ‘vital interest’ with respect to individual identity.60

Such an interpretation of Articles 7(1) and 8 CRC would not, however, necessarily require
states to prohibit all forms of ICS arrangements altogether nor does it require states to
recognize the existence of a legal relationship between the commissioning parents and the
child. Rather, states should be encouraged and, indeed, may to a considerable extent even be
expected to put in place adequate regulatory structures which ensure appropriate record-
keeping and mechanisms to enable children to access information regarding those individuals
who played a genetic or gestational role in their creation.61

In connection with Article 7 CRC, for the child, pervasive problems involving nationality law
and statelessness could also arise as a result of an ICS arrangement. Thus, if a law provides
that the legal mother is the person giving birth, the child’s status may be unclear. If that law
provides that a child cannot accordingly acquire the nationality of her intending parents, the
child may be left in a legal predicament if the nationality and parentage law of the state of the
surrogate regards the commissioning parents as the child’s legal parents.62

As has been pointed out, however, in Mennesson and Labassee this right under Article 7
CRC had been met, as the children did have a nationality (American) and they did have legal
parents, at least in one jurisdiction, i.e., that of the surrogate (in California and Minnesota).
The problem of establishing nationality was much more acute in the Paradiso and Campanelli
case. Here the content of the Italian PIL rule of conflict was deficient as no parentage could
be established with regard to the child’s anonymous donors and resort was made to domestic
Italian law, However, it is clear that the insistence on a violation of order public, and the
blanket refusal both to accept the existence of any sort of family law relationship and to
confer French nationality on the children accordingly, meant that the children’s legal position
in the Mennesson and Labassee cases was, for all intents and purposes, jeopardized.63

60
Ibid.
61
ECtHR Dickson v. the United Kingdom, 4 December 2007, No. 44362/04, No. 58
62
Ibid.
63
Supra Note 41.

16
Right to Dignity and the Prohibition of Sale of Children
It has been suggested that the purpose of the Optional Protocol to the UN Children’s Rights
Convention includes the exploitative transfer of children and that this interpretation would
exclude commercial surrogacy arrangements.64 The sale of reproductive services per se could
be seen as contravening prohibitions against utilizing ‘the human body and its parts…as
such…[for] financial gain’.65

The concept of a ‘sale of a child’ in the ICS context does not imply a proprietary transfer, but
merely a physical one that is facilitated by remuneration. 66 Furthermore, as has been
suggested above, to equate the role of a gestational surrogate mother to that of a factory
worker could be considered demeaning not only to women but also to children. Therefore, in
this respect under human rights law a viable case could justifiably be made for prohibitionist
states to ban all forms of ICS altogether. At the same time, in our view, reliance on these
human rights concerns would not seem to be an adequate response to the manifold legal
problems surrounding ICS arrangements.67

LEGAL FRAMEWORK RELATED TO SURROGACY

64
S Fiandaca, “In Vitro Fertilization and Embryos: The Need for International Guidelines”
65
Kiestra 2014, Sect. 6.31 et seq. Ammdjadi v. Germany, 9 March 2010

66
Supra Note 41.
67
Supra Note 41.

17
It has been widely recognised that there is an urgent need for a multilateral, legally binding
instrument that would establish a global, coherent and ethical practice of international
surrogacy.68 In 2010, the problem of international surrogacy arrangements was identified as
an emerging international family law issue that required further study and discussion by the
Special Commission on the practical operation of the Hague Convention of 29 May 1993 on
Protection of Children and Co-operation in Respect of Intercountry Adoption, The
Commission noted that the number of international surrogacy arrangements was rising
rapidly, and voiced concern “over the uncertainty surrounding the status of many of the
children who are born as a result of these arrangements”. 69 The Commission also noted that
the use of the Adoption Convention in cases of international surrogacy was inappropriate.70

The issue was also raised at the Hague Conference General Affairs Meeting in April 2010 (by
Israel)71 as well as at the International Family Justice Judicial Conference for Common Law
and Commonwealth Jurisdictions in Cumberland Lodge, England in August 2009. 72 Even
more importantly, the problem of cross-border surrogacy arrangements has been discussed in
depth at the Hague Conference Council on General Affairs and Policy meeting in April
2011.73 It was proposed at the meeting that, if there was sufficient interest among Member
States of the Hague Conference, the Conference should engage in further work in the area of
international surrogacy. In particular, it was suggested that the Permanent Bureau “intensifies
its work on the private international law aspects of the establishment and contestation of legal
parentage, in particular on the broader range of private international law issues arising from
international surrogacy arrangements”.74 The Permanent Bureau proposed that it continue to
gather information on “the practical needs in the area, comparative developments in domestic
and private international law, and the prospects of achieving consensus on a global

68
Hague Conference on Private International Law, “Private International Law Issues Surrounding the Status of
Children, Including Issues Arising From International Surrogacy Arrangements”, Prel Doc No 11 of March
2011 for the attention of the Council of April 2011 on General Affairs and Policy of the Conference [11],
www.hcch.net/upload/wop/genaff2011pd11e.pdf, accessed 4 March 2021 .
69
Hague Conference on Private International Law, “Conclusions and Recommendations Adopted by the Special
Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and
Co-operation of Intercountry Adoption”, [25], www.hcch. net/upload/wop/adop2010concl_e.pdf, accessed 23
March 2021
70
Ibid.
71
Hague Conference on Private International Law, “Council on General Affairs: Conclusions and
Recommendations”, 7–9 April 2010, www.hcch.net/upload/wop/genaff2010concl_e.pdf, accessed 1 March
2021.
72
Ibid.
73
Ibid.
74
Supra Note 50.

18
approach”.75 It also proposed to carry out consultations with legal, health and other relevant
professionals.76

In India the parliament passed The Surrogacy (Regulation) Bill, 2020(Surrogacy Bill) which
is an ethical, moral and social piece of legislation which protects both exploitation of the
surrogate mother and the rights of a child born through surrogacy, One of the Bill’s most
noticeable features is that it has continued the ban on commercial surrogacy.77

The Bill predominantly proposes to allow/limit altruistic ethical surrogacy to intending

infertile Indian married couples only between the ages of 23-50 for women, and 26-55 for
men. Couples should be citizens of India, or non-resident Indians, persons of Indian origin or
overseas citizens of India.78

There are, however caveats for a couple of Indian origin opting for surrogacy arrangements.
They cannot have a surviving child, either biological or adopted, except when they have a
child with a mental or physical disability, or who suffers from a life-threatening disorder with
no permanent cure, This unfortunate position must be confirmed by the appropriate authority
with a due medical certificate from a District Medical Board.79

CONCLUSION

75
Permanent Bureau of the Hague Conference on Private International Law, “Report and Conclusions of the
Second Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection
of Children and Co-operation in Respect of Intercountry Adoption (17–23 September 2005)”, [42],
www.hcch.net/upload/wop/adop2005_rpt-e.pdf, accessed 25 March 2021.
76
Ibid.
77
The Surrogacy (Regulation) Bill, 2020
78
Ibid.
79
Ibid.

19
The surrogacy practice hence violates the Convention on the Rights of the Child as per
Article 7 (1), on the child’s right to know and be cared for by his or her parents; Article 9(1),
on ensuring that a child is not separated from his or her parents against their will; and Article
35, on preventing the abduction of, the sale of or traffic in children for any purpose or in any
form; the Convention on the Rights of the Child on the sale of children, child prostitution,
and child pornography (as per Article2a),which defines the sale of children as “any act or
transaction whereby a child is transferred by any person or group of persons to another for
remuneration or any other consideration”. The Surrogacy (Regulation) Bill 2016 in India
does not refer to “trafficking or sale, abduction of surrogate child” either in altruistic or
commercial surrogacy arrangement in any form under the same.

From a global perspective, India is a typical case of how rampant violations of human and
child rights, women’s bodily integrity and medical ethics thrived on global structural
inequalities the surrogacy practice promotes deeply embedded pronatalist, patriarch, racial,
ageist, casteist, sexist and ableist hegemony. This raises globally relevant questions of
geneticisation, alienation of the gestational role, human and child rights violations, trafficking
and reproductive injustice. Surrogacy should be disallowed in any circumstances because
even if a woman is not donating part of her body or her biological substance, she is creating
another human being and then giving it away. In all the debate on individual rights of the
commissioning parents and the surrogate mothers, the human rights of children have not been
taken into account.

The Surrogacy arrangement deals with the huge human right concern as we see from the
Balaz twin case or the baby Manji case that the surrogacy arrangement violates the human
rights of the Child also the human rights of the surrogate mother are in danger there are
exploitation of the surrogate mother by the agencies. So, we need the strict law for the
governance for surrogacy not only the international convention but also the domestic law to
regulate, so that the exploitation and human right violation will be reduced.

BIBLIOGRAPHY

20
1. Anindita Majumdar, Transnational Commercial Surrogacy and the
(Un)Making of Kin in India, Published by OUP India; Edition 1st (2017).

2. Gita Aravamudan, Baby Makers: The Story of Indian Surrogacy,

Published by HarperCollins; Edition 1st (2014).

3. Pinki Virani, Politics of the Womb: The Perils of IVF, Surrogacy and
Modified Babies, Published by Penguin Random House India Private
Limited; Edition 2nd (2016). 

4. Henry J. Steiner and Philip Alston, International Human Rights in

Context: Law, Politics, Morals, Published by: Oxford University Press,
Edition 2nd (2000).

5. Rebecca J. Cook (ed), Human Rights of Women: National and

International Perspectives, Published by University of Pennsylvania
Press, Edition 1st (1994).

21
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