‘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.’
Parents are the main people responsible for bringing up a child and ensuring all
child rights due to him. The intending parents of a surrogate child cannot dilute
their responsibilities just because the child is born through surrogacy. Section
8 of the Act is very significant and will obliterate any ambiguities about legal
parentage of the child.
As per the preamble to the ‘Verona Principles’,18 (published by ‘International
Social Service,’ Geneva in 2021), these principles are based on the premise
that no child should be disadvantaged, suffer harm, be punished because of the
circumstances of their birth, whether through discrimination, exploitation or any
other action that might deprive them of a right established in international law.
The UNCRC,1989, in its Preamble, recognises that,‘the child, for the full and
harmonious development of his or her personality, should grow up in a family
environment, in an atmosphere of happiness, love and understanding.’This, in
turn, will be possible only if the child doesn’t have to worry about or be uncertain
about his/her family.The surrogate child has to be ensured the same rights as
the children born naturally to their parents and this safeguard is incorporated as
Section 8 of the Surrogacy Act.
Further, Section 8 of the Surrogacy Act has provided legitimacy to the child born
through surrogacy by deeming the said child to be the biological child of the
intending parent(s).Prior to the promulgation of this Act, the legitimacy of the birth
of children was governed by the personal laws. For example, the Hindu Marriage
Act, 1955 and Special Marriage Act, 1954 confer legitimacy only on children
born biologically to their parents. In this context, the Law Commission of India,
in its 228th Report, recommended that — legislation itself should recognise a
surrogate child to be the legitimate child of the commissioning parent(s) without
there being any need for adoption or even declaration of guardian. The relevant
rights of the children born through surrogacy stand safeguarded thereof.
(xiv)Section 38 of The Surrogacy (Regulation) Act, 2021 has provisioned ‘Offences
and Penalties’ to ensure the rights of children born through surrogacy as
provisioned in the Act and explained in the preceding points.‘Any person,
organisation, surrogacy clinic, laboratory or clinical establishment of any kind
‘Verona Principles’ (published by ‘International Social Service,’ Geneva in 2021), for the protection
of the rights of the child born through surrogacy following a comprehensive consultation process as
well as substantive contributions from over 100 different experts covering multiple disciplines and
perspectives, regions, national and international contexts. The link is:https://www.iss-ssi.org/wp-content/
uploads/2023/03/VeronaPrinciples_25February2021-1.pdf
18
Journal of the National Human Rights Commission, Vol. 22, 2023
73