The hope lies in the above-mentioned provision of ‘parental order’ and various other
provisions of the new laws,which will act as a deterrent against the malpractices and
lack of compassion towards the rights of children born through surrogacy or even IVF
for that matter. The penalties and offences will further strengthen the implementation
of these laws that have been so carefully legislated with the prime objective of
protecting the rights of the children born through surrogacy, the surrogate mothers
and the intending parent(s) from exploitation, ensuring quality services by the clinics
and most importantly, the commissioning parents will be more sure of their child’s
genealogy,children will have access to information about their origins whenever
required and both will be confident about the ethical and transparent treatment by the
clinics.
As regards the data deficit, the question may arise that if no concrete data is available,
what factors established the need to bring about the related laws. The answer to this is
that the need has been felt through innumerable other sources like court cases, failed
paternity establishments (DNA, etc.), custody disputes, citizenship denials in case
of International Surrogacy Arrangements(ISAs), surrogates divulging when wronged,
Members of Parliament from certain constituencies (that have been hubs of surrogacy)
raising the issues in the House, issues raised by activists, and so on.
The surge in surrogacy hubs in India during the last three decades could not contain the
issues infesting the system and they came out of the closet. There have been reported
incidents of unethical practices, abandonment of children born out of surrogacy and
trading in human embryos and gametes as well. Also, there were reports of the deaths
of surrogate mothers and egg donors, stranded disabled children and custody battles
over children. Desperate surrogate mothers lodged complaints when they did not
receive the promised amounts from the clinics, the agents or the intending parents.
These matters have been regularly reflected in different print and electronic media
for the last few years. In 2008, a Japanese couple began the process with a surrogate
woman in Gujarat, but before the child was born, they split with both of them refusing
to take the child.20 In 2012, an Australian couple commissioned surrogacy and decided
to choose one of the twins born through the process.21 The fate of the other twin
remained unknown.
The rights of children born through surrogacy were further violated when they were
born pre-term and underweight and needed intensive care because the surrogate
mothers were unable to carry them to full term. The intensive care raised the hospital
bills exponentially, which the intending couples found impossible to pay and, therefore,
abandoned the child. Some of these cases got resolved, though, at police intervention
Baby Manji Yamada v. Union of India[2008 13 SCC 518]
An Australian couple case link:https://timesofindia.indiatimes.com/india/aussie-couple-abandonedsurrogate-baby-in-india/articleshow/44766805.cms
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Journal of the National Human Rights Commission, Vol. 22, 2023