(xvii)Sections 49 and 8 of the Surrogacy Act, respectively, read as:
— ‘The provisions of this Act shall be in addition to, and not in
derogation of, the provisions of any other law for the time being in
force:’
— ‘a child born out of surrogacy procedure, shall be deemed to
be a biological child of the intending couple or intending woman
and the said child shall be entitled to all the rights and privileges
available to a natural child under any law for time being in force.’
These two Sections reinforce that all child rights, conferred under various child
related and other laws of the country, are assured for children born through
surrogacy.
6. Existing Practices and Impact of Law
The regulations and reforms brought about through the Surrogacy (Regulation) Act,
2021, the ART(Regulation) Act, 2021 and other related laws will inevitably have an
impact on the prevalent system. However, it will not get noticed till some time has
lapsed as the commencement of these Acts in January 2022 is quite recent.
The comparison between the situations prior to/post promulgation of these laws will
reveal the effect of the same. However, this will be a daunting task because the related
information is more hidden than shared as it serves the vested interests of certain
people operating in this ecosystem. It has been observed in the past, i.e., prior to the
enactment of the Surrogacy Act, that ‘every surrogate birth is not followed by a formal
application for legal parenthood. A child may be handed over by the surrogate mother
and live with the commissioning couple without any legal formalities.’19
The main issue is that the data/information on surrogate children is not being maintained
separately amongst the children abandoned or surrendered. The information on
abrogation/violation of any of the child rights may exist, but not categorised based
on the origin of these children. When any child is either given up in adoption by the
adoption authorities or presented before the Child Welfare Committee, his/her origin
as to whether born through surrogacy, etc. is not known/recorded (as is understood
from reliable sources).This is probably because exercising surrogacy option by the
intending parents remains stigmatised and, more often, not disclosed among the
people known to them. Moreover, categorising a child as a ‘surrogate child’ may prove
discriminatory against him/her. The provision of ‘parental order’ in the Surrogacy Act
may go a long way in determining this and may, in fact, cease/reduce the problem
itself.
19
Para 3.1.8.2 of the book on, Surrogacy — Law, Practice and Policy in India by Dr. Rekha Pahuja.
Journal of the National Human Rights Commission, Vol. 22, 2023
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