reported cases were involving international surrogacy arrangements(ISAs) leading to
banning foreigners from surrogacy in India in 2015 vide an order from the Ministry
of Home Affairs(MHA) and retaining a similar position in the Surrogacy (Regulation)
Act, 2021.While analysing the domestic scene is very important, it would be relevant
to delve into the international scenario as well in respect of the rights of children born
out of surrogacy.
7. International Scenario
The issue pertaining to the rights of children born through surrogacy is complex
and evolving on the international canvas. Uncertainties have arisen as a result of
changing family patterns and advances in reproductive medical science. Different
countries have varied legal frameworks, policies and cultural perspectives regarding
surrogacy and the rights of children born through it. Difficulties have arisen because
these frameworks have not been globally uniform and there is increased frequency of
families crossing borders in an era of globalisation. Quoting from UNICEF’s note on
‘Child Rights and Surrogacy’—
‘Surrogacy, especially through international arrangements, is
increasingly used as a method of family formation around the world.
Although there are no precise global figures on how many children
have been born through surrogacy, the development of Assisted
Reproductive Techniques (ART), changes in social norms and the
trend for having children later are leading to more children being
born through surrogacy’.
Moreover, it has become well known that surrogacy is a global business and the
business interests often over-ride the rights of persons affected by it including those
of surrogate children and more so when they are vulnerable and at risk.
Besides, the variation in the laws governing the rights of surrogate children born in
different countries, there are differences in the basic types of surrogacies supported.
For example, there are countries supporting altruistic surrogacy like UK,Denmark,
Netherlands, some states in USA, Australia, Brazil, Belgium, etc. Russia supports
commercial surrogacy and others in this race are Iran and Georgia. Then, there are
many countries which have banned surrogacy totally including Austria, France,
Norway, Pakistan, Japan, China, Italy, Spain, Switzerland, certain States of USA,
etc. Thailand banned surrogacy, making it a criminal offence when a child with
downs syndrome was left behind with an unmarried surrogate mother.
India has avoided the extreme stands and adopted a middle path by facilitating surrogacy
but in a regulated way. The ‘Rajya Sabha Select Committee report on Surrogacy’
mentions that ‘law must keep pace with the emerging/developing technologies so that
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