fulfilled only when parents have enough balance life span to do so. The fulfilment
of parental responsibilities is central to children’s enjoyment of their rights.
Moreover, in the process of fulfilling the desire of a couple to become parents,
the rights of the unborn child/children, brought in this world through surrogacy
cannot be overlooked. The surrogate child should have similar parental care like
children born by normal way of reproduction. Therefore, this provision of the
Surrogacy Act is very significant in safeguarding the health and upbringing of
children born from surrogacy.
(xi) Section 7 of the Surrogacy Act states that:
‘The intending couple or intending woman shall not abandon the
child, born out of a surrogacy procedure, whether within India or
outside, for any reason whatsoever, including but not restricted to,
any genetic defect, birth defect, any other medical condition, the
defects developing subsequently, sex of the child, or conception of
more than one baby and the like.’
Article 21 of our Constitution is on the right to live.This also holds good for
the child. Each child has a human right to be born with dignity and be provided
with a complete family. Section 7 of the Surrogacy(Regulation) Act, 2021,is
taking care of human rights of the child (born through surrogacy) that are at risk
of violations in surrogacy situations. Decisions may be made by adults in these
situations which are discriminatory based on child’s disability, gender etc. and
these may not be in the best interest of the child. It is, therefore, very crucial that
Section 7 and other Sections related to human rights of children born through
surrogacy are efficiently implemented.
(xii) Besides the safeguards provided in the Surrogacy (Regulation) Act, 2021, the
ART(Regulation) Act, 2021, promulgated in December 2021, also provides for
certain safeguards that are very relevant for surrogate children. Infact, surrogacy
procedures cannot be conducted without Assisted Reproductive Techniques.
Section 25 of the ART Act delves deeper into the matter relating to the right
to health of the child to be born through surrogacy by provisioning for ‘The
Pre-implantation genetic testing to screen the human embryo for known, preexisting, heritable or genetic diseases’. The pre-implantation genetic testing
serves to protect the rights of a surrogate child by increasing the likelihood of
a healthy birth, reducing the risk of genetic diseases and adhering to ethical
principles. The prospective parents can make informed choices to safeguard
their child’s health and well-being, aligning with the child’s right to a life free
from preventable suffering.
(xiii)Section 8 of the Surrogacy Act specifies that:
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Journal of the National Human Rights Commission, Vol. 22, 2023