term and hand over the child to the intending parent(s) once born.
Surrogacy can be gestational or traditional. Traditional surrogacy involves insemination
of the surrogate naturally or artificially with the gamete of the male partner of the
intending couple and thus the child gets genetically related to the surrogate mother.
This kind of arrangement has peculiar set of problems for the parents and the child, as
was exhibited in an old Bollywood movie ‘Chori-Chori Chupke-Chupke’ where the
surrogate is not ready to part with the child. In gestational surrogacy, an embryo from
the ovum and sperm of intended couple is fertilised and implanted to the womb of
the surrogate. In this case, the resulting child has no genetic relation to the surrogate
mother.
Besides the kinds of surrogacy, the surrogacy arrangement can be on the commercial
or altruistic basis.In commercial surrogacy, the surrogate mother is remunerated
above all the required medical and other expenses involved in the process whereas in
altruistic surrogacy, only the necessary medical and other expenses are expended by
the intending couple.
3. The Indian Context
The Indian law allows only gestational surrogacy on altruistic basis.The regulation of
surrogacy varies in different countries with an overall progression towards altruistic
surrogacy. Based on the information available online, it is understood that many
countries like Austria, France, some states of USA, Norway, China, Italy, Spain,
Switzerland, etc. have banned surrogacy. Altruistic surrogacy is being supported by
UK, Netherlands, Australia, Brazil, Belgium, Canada, some states of USA, etc. On
the other hand, very few countries like Iran, Georgia and Russia allow commercial
surrogacy legally and this is not viewed positively in the international fora. Besides,
there are countries, where surrogacy is not regulated at all and these can seriously
impede the rights of the children born there through surrogacy arrangements.
The problems pertaining to the rights of the children born through surrogacy
arrangements get compounded in the cases of International Surrogacy Arrangements
(ISAs) and many international agencies have deliberated upon the relevant matters.
‘Children face becoming commodities as surrogacy arrangements become more
prevalent, and urgent action is needed to protect their rights’, the UN Special
Rapporteur on the sale and sexual exploitation of children warned in a meeting held
in Geneva on 6 March 2018.4With a growing industry driven by demand, surrogacy
became an area of concern for rights and protection of children. As per UNICEF’s5
Extract from the press release on a UN meeting in Geneva on, ‘Children risk being “commodities” as
surrogacy spreads, UN rights expert warns — Surrogacy Concerns’. The link is: https://www.ohchr.org/
en/press-releases/2018/03/children-risk-being-commodities-surrogacy-spreads-un-rights-expert-warns
5
UNICEF—United Nations International Children's Emergency Fund. UNICEF’s briefing note on
‘Key considerations: Children’s Rights andSurrogacy’ of February 2022. The related link is:https://
www.unicef.org/media/115331/file#:~:text=Children%20born%20through%20surrogacy%2C%20
4
Journal of the National Human Rights Commission, Vol. 22, 2023
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