Human Rights Issues regarding Surrogacy: An Overview

Submitted by
KINGSHUK SAHA
Student, BBA LLB
Symbiosis Law School, Hyderabad
Email: kingshuksaha98@[Link]
 Abstract

It is safe to assume that the world today is much smaller than ever before, and is largely
because of the rapid technological advancements. One of the biggest beneficiaries of the
global advancements in technology has been the field of medicine, especially the field of
assisted reproductive techniques. While globalization has surely made resources on this
planet more easily accessible to people than ever before, it raises ethical and legal dilemmas
which need to be resolved. Different countries have different and conflicting opinions on
surrogacy. The issues relating to human rights are not only plentiful but also complex in
nature. One can divide the human rights issues in three broad categories: rights of the child,
the commissioning parents’ rights and the surrogate mother’s rights. The clash between the
right to individual autonomy versus the right to procreative liberty is a prime example of how
difficult the question of ascertaining rights become.

Objective

The objective of this paper is to analyse the human rights issues arising out surrogacy
throughout and to find out what can be done to alleviate such concerns.

Research Questions

1. What the human rights issues faced by a surrogate chid are.

2. Whether the right to individual autonomy trumps the right to procreative liberty.
3. What the human rights issues that arise out of commercial surrogacy are.

Research Methodology
The methodology used for the project is purely doctrinal. Journal articles, statutes and other
legislations have been read and analysed to arrive at a conclusion.

How the research is beneficial for the legal community

The human rights issues related to surrogacy are multi-facteted and require thorough research
and understanding. This article provides an answer to the human rights issues regarding
surrogacy worldwide.
 Literature Review

Name of the paper Author Proposition Gap

Human Genome and Kshitij Kumar Singh While ART has His solution to solve
Human Rights: An given new hope of human rights issues
Overview motherhood to arising out of
people, it raises legal surrogacy is
Journal of the Indian questions and human legislation giving
Law Institute, Vol. rights issues like effect to human
50, No. 1 right to dignity, rights. However, he
(JANUARY- individual autonomy, fails to expand what
MARCH 2008), pp. procreative liberty, the legislation should
67-80 right to know etc. contain , and how to
draw a balance
between the two
conflicting rights of
procreative
autonomy and
individual autonomy.
Selling Reproductive Janna C. Merick Commercializing The paper only deals
Rights: Policy Issues childbirth raises legal with commercial
in Surrogate questions like surrogacy and not
Motherhood custodial issues, voluntary surrogacy,
equal protection, or surrogacy with
Politics and the Life right to care and other ART like
Sciences, Vol. 8, No. contractual issues. embryo transfer.
2, The Politics of But the balance of
Surrogacy Contracts evidence being
(Feb., 1990), pp. higher on the side of
161-172 banning commercial
surrogacy.
Taming the Sally Howard By citing example of The author provides
international proposed or adopted no solution as to
commercial legislations on deal with issues
surrogacy industry commercial arising out of
BMJ: British Medical surrogacy from commercial
Journal , Vol. 349 Thailand, China, surrogacy.
(20 Oct 2014 - 26 India and the UK, the
Oct 2014) author points out the
difference on opinion
on surrogacy
worldwide.
Surrogacy and the Elizabeth S, Scott Well designed The author does not
Politics of legislation on properly describe
Commodification surrogacy would what well designed
lessen all the surrogacy regulations
Law and potential problems should contain.
Contemporary arising out of
Problems, Vol. 72, surrogacy.
No. 3, Show Me the
Money: Making
Markets in Forbidden
Exchange
(SUMMER 2009),
pp. 109-146
A Case for Brenda M. Baker Non-commercial The article does not
Permitting Altruistic surrogacy leads to take a stand on
Surrogacy commodification of commercial or
reproductive process, contractual
Hypatia, Vol. 11, No. and raises questions surrogacy.
2 (Spring, 1996), pp. of parental rights.
34-48
Children’s Welfare, Eric Blyth Although there is The article talks
Surrogacy and Social much talk about the about the need of
Work welfare of a child welfare but
surrogate child, in does not substantially
The British Journal practice, the concerns deal with the child’s
of Social Work, Vol. of child welfare are rights issues arising
23, No. 3 (JUNE marginal. out of surrogacy.
1993), pp. 259-275
Commercial Louise Anna Helena The article argues for The article does not
surrogacy: how Ramskold and the need of deal with the huan
provisions of Marcus Paul Posner international laws rights issues which
monetary and regulations could arise by
remuneration and which are based on making commercial
powers of evidence to be the surrogacy legal.
international law can way out for the issues
prevent exploitation arising out of
of gestational commercial
surrogates surrogacy, both
ethical and legal.
Journal of Medical
Ethics, Vol. 39, No. 6
(June 2013), pp. 397-
402

The Case against Martha A. Field Surrogacy contracts Constitutional theory

Enforcement of gives rise to is not clear on
Surrogacy Contracts questions on whether intangible
constitutional rights. community interests
Politics and the Life can be placed above
Sciences, Vol. 8, No. community rights.
2, The Politics of
Surrogacy Contracts
Foundations of the Ayman Shabana Since clear The moralistic
Consensus against legislation on attitude of the jurists
Surrogacy surrogacy is not is not supported with
Arrangements in present in most legislative intent.
Islamic Law Islamic countries, the
 juristic opinion forms
Islamic Law and the moral basis for
Society, Vol. 22, No. surrogacy and
1/2 (2015), pp. 82- genealogical rights.
113 And thus although
surrogacy in Islam is
prohibited, if it
happens, it would not
go unregulated.
Surrogacy v/s M.P. Chandrika The article highlights The article needed to
Adoption: The Law the rights of a delve into the issue
and Rights of the surrogate child as of right to privacy of
Children against an adopted a child,
child, and calls for
International Journal changes in legislation
of Law and Legal on surrogacy in
Jurisprudence India.
Studies, July 2014, p.
2
 INTRODUCTION

There is perhaps no better feeling in the world than the feeling of parenthood, and more
specifically, motherhood. Unfortunately, not all couples can experience it naturally because
of biological and genetic limitations. Since the progress of science and technology, and
medical science in particular, it can be reasonably expected that assisted reproductive
technology (ART) would come to the aid of such grieving women or couples. The most
popular form of assisted reproductive technology till date remains surrogacy.

The term ‘surrogacy’ comes from the Latin term “surrogatus” which translates to
‘substitute’. Surrogacy is a form of assisted reproductive technology whereby the intending
parents (also known as commissioning parents) often enter into a contract, or a legal
agreement with the surrogate mother that the latter would become pregnant, or carry the
unborn child in her womb till childbirth, for the commissioning parents, who would
ultimately claim parenthood over the child. If it is done through a legal agreement and the
surrogate mother is compensated in monetary terms, then that form of surrogacy is called
commercial surrogacy, and if there is no monetary consideration involved, then it is called
altruistic surrogacy (which is the only form of surrogacy allowed by law in a lot of countries
like Australia, United Kingdom, Portugal and most of Canada).

The problems with surrogacy are a lot, and sometimes they lead to both legal and human
rights conflicts, so much so that many countries have explicitly banned all forms of
surrogacy, like China, Japan, Pakistan, Saudi Arabia, Spain, Italy and Iran. This paper deals
with the human rights issues arising out of commercial surrogacy and would deal with the
human rights of children born out of surrogacy, as well as the human rights of the surrogate
mother and the commissioning parents.
Child Welfare: Human Rights of the Surrogate Child

Article 3 of the Convention of the Rights of the Child promotes child welfare. It states that
whatever decisions are taken with respect to the child, it should be in the child’s “best
interests”1. No decision taken by either the State or the parents of the child should be such
that it does not give primacy to the best interests of the child. Whatever decision is taken with
regards to the child should be beneficial to the interests of the child. “The International
Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW) other than the Convention on the
Rights of the Child (CRC) talk about child rights which are vital in the context of certain
rights, which includes the right to health, the right to support, the right to know one’s origins,
and the right to a family. If the rights of a child are grossly violated, then to save the
surrogate child, even a homosexual could choose this way.2”

Children born out of surrogacy contracts are most vulnerable as neither can they speak for
themselves nor can they enforce their rights as a party to a contract. Had it not been for the
surrogacy contract, they would not even have been born.3 There is another concern that the
child born as an outcome of surrogacy contract would amount to sale of children, which is
illegal according all international conventions on this matter.

The terrifying potential risks to the surrogate child are: separation of the surrogate child
forcefully from his/her biological mother, the loss of half of his/her genetic history, lack of
clarity about her/his origins, and psychological damage, the latter largely connected to idea of
the 'commodification’ of children.4”Of all these concerns, perhaps the one which is most
unique to surrogacy is the deliberate separation from the surrogate biological mother. We live
in a culture that celebrates the unique relationship between a birth mother and the child, but
we often ignore the loss of the genetic father-child relationship as a result of anonymity
which is maintained about the donor father in case of artificial insemination of the surrogate
mother by an anonymous donor.

1
Article 3, Convention on the Rights of the Child, 1990
2
M.P. Chandrika, Surrogacy v/s Adoption: The Law and the Rights of the Children, International Journal of
Law and Legal Jurisprudence Studies, July 2014, p. 11
3
Janna C. Merrick, Selling Reproductive Rights: Policy Issues in Surrogate Motherhood,
Politics and the Life Sciences, Vol. 8, No. 2, The Politics of Surrogacy Contracts(Feb., 1990), p. 163
4
Blyth, Eric, Children’s Welfare, Surrogacy and Social Work, The British Journal of Social Work, Vol. 23, No.
3 (JUNE 1993), p. 263
It is a legitimate concern because the maintenance of donor anonymity has been a marked
feature of practice in surrogacy clinics and has been given legal force under the provisions of
the Human Fertilization and Embryology Act in the UK.”This is a standard practice which
has been reinforced by the usage of legislation. However, there is no evident reason why this
practice of donor anonymity, i.e., the children not knowing who their biological/genetic
fathers are, should be continued, which has become a standard practice, should be continued.
There is no evident reason as to what harm it would cause the child if he/she were to know
the identity of his genetic father were to be revealed, except social stigma. Instead of focusing
maintaining donor anonymity, the primary focus should be the removal of social stigma that
is associated with this.

Another cause of concern is the ‘family form’ which needs to be read in the larger context of
the rights of a child under Article 18 of the Convention of the Rights of the Child. Article 18
talks about parental responsibilities, and parents providing “appropriate guidance” to their
children. There are diverse family forms, and our social stigma makes us believe that one
form of family is better than the other. Family diversity is a reality, and ideologically-driven
promotion of one family form over another fails to take into account the realities of society.
There is hardly any evidence to show that particular family forms are by its nature better or
worse for the growing children, thereby confirming that paying heed to family functions
would be more conducive to the child’s welfare than the cultural obsession over family
structure5.”

Right to individual autonomy versus right to procreative liberty

“The principle of individual autonomy is often used to justify surrogacy. This principle states
that people are at a liberty and are free to do what they wanted with their bodies provided that
no harm is caused to other people. The actual fallacy of this autonomy argument is
demonstrated in the fact the decision a woman undertakes to bear a child (i.e. to do something
with her body) is not the prme issue in case of surrogacy but rather the decision of giving the
the child to someone else who happens to want it.6”

In cases of surrogacy, the Courts need to consider not only the rights of the child but also the
rights of both the surrogate as well as the commissioning mother. In this case, “the
fundamental right of conception as a predicate to the right of procreation is at stake.. Because
5
Ibid, p. 265
6
Kshitij Kumar Singh, Human Genome and Human Rights: An Overview, Journal of the Indian Law Institute,
Vol. 50, No. 1 (JANUARY-MARCH 2008), p.76
even infertile mothers can exert of psychological conception, they too have a procreative
right should preserve. Conscious and intentional exertion of the right to procreate should be
given more importance than accidental or unintended procreation.”

Human rights issues arising out of commercial surrogacy

Commercial surrogacy is believed by many to be a gross violation of human rights. In fact,

the rule seems to be set on stone for China. One among the very few countries in Asia (where
the market for commercial surrogacy booms), China’s firm stance on this has been such from
the very inception of gestational surrogacy, which ultimately resulted in China banning it
altogether on 1994 claiming it would cause problems in defining true parenthood.7”

It is in the best interests of human society to satisfy the parental demands of a couple unable
to reproduce. On one side, the father would want to raise a child of his own to further his
lineage, and on the other side, the mother would want her maternal duties fulfilled by raising
her husband’s child. They are all demands which are not only understandable and significant
but also constitutionally valid. However, it would be taking a very narrow stance on this
issue if we were to disregard the surrogate child’s rights, which are similar in nature to those
attributed to the couple, more so if the said right is a constitutional right: a natural and
fundamental right.8”

To make sure that their pregnancy experience is nothing but positive, research has shown that
monetary remuneration, along with other psychological “distancing” techniques, help the
surrogate mother to emotionally detach herself from the growing foetus, That pregnancy
should be depersonalized is something that clinical psychologists believe is necessary to
make sure that the bonds of mother and child do not bear flowers. “The maternal-foetal
detachment theory proposes that gestational surrogates actively learn to suppress their
maternal instinct and detach themselves emotionally as well as socially from the pregnancy
by deflecting any surfacing emotions on to the intending couple.”9

Another way out in this situation is what doctors call “spatial disconnection”. This is where
the surrogate mothers are psychologically taught to distance or disconnect themselves from

7
Sally Howard, Taming the international commercial surrogacy industry, BMJ: British Medical Journal , Vol.
349 (20 Oct 2014 - 26 Oct 2014), p. 2
8
Martha A. Field, The Case against Enforcement of Surrogacy Contracts, Politics and the Life Sciences, Vol. 8,
No. 2, The Politics of Surrogacy Contracts(Feb., 1990), p. 200
9
Louise Anna Helena Ramskold and Marcus Paul Posner, Commercial surrogacy: how provisions of monetary
remuneration and powers of international law can prevent exploitation of gestational surrogates, Journal of
Medical Ethics, Vol. 39, No. 6 (June 2013), p. 399
their pregnant belly. Similarly, the 'perception of the surrogate's body as an extension to the
intended mother's body' enables the commissioning couple to connect emotionally with the
growing belly and negotiate the issue of identity and parenthood.10 It is possible that certain
serious concerns that one might have about the use of contract law to govern surrogate
agreements could be laid to rest by ensuring that one or more of these essential conditions are
obtained.11”

Human Rights of a Surrogate Mother: The Potential Risks

In Islamic law, surrogacy is frowned upon as not something one should indulge in. In spite of
that, most Shi’a and very few Sunni jurists allow gestational surrogacy after imposition of
stringent conditions.12 This is because a lot of them are not compatible with the idea of
biological parenthood taking a step back. The rights of a biological mother, they believe,
could be endangered if such procedures were allowed to go on.

Some surrogate mothers maintain that remuneration is not only just but also necessary as a
mode of compensation for the trouble both she and her family has to go through. Through
individual empowerment and better economic opportunities, it would also lead to strengthen
the position and status of women in some patriarchal societies. Thus, this also requires that
surrogate mothers go through a proper physiological and psychological counselling to make
them understand that they should not become a party to surrogacy agreements just so that
they could empower themselves. That being said, getting paid handsomely due to their
surrogacy agreements can help to better the mental health of the surrogate mothers.

There is an elaborate choosing process of the most suitable surrogate mother, no matter what
the surrogate destination is. They have to go through a painstaking process of identification
and medical examinations. While it is only for the best interests of all the parties involved
that the surrogate child is born healthy, such measures may often reveal embarrassing details
about either parties which they would like to keep a secret, more so in case of a surrogate
mother. They are possible violations of her rights to privacy and right to move freely.
Sometimes those recruitments methods are coercive, and the potential surrogate mother are
forced into this by intimidation, undue influence, misrepresentation and fraud. Rape is not an

10
Id.
11
Brenda M. Baker, A Case for Permitting Altruistic Surrogacy, Hypatia, Vol. 11, No. 2 (Spring, 1996), p. 36
12
Ayman Shabana, Foundations of the Consensus against Surrogacy Arrangements in Islamic Law, Islami
Lawand Society, Vol. 22, No. 1/2 (2015), p. 112
uncommon though extreme method of coercion followed in these recruitment drives. Often,
the surrogate mothers are forced to do an act which they normally would not do, like forcing
her to listen to soft classical music, as it is supposed to have a positive effect on the growing
foetus. This form of coercive behaviour is often justified by pointing out the requisite clauses
in the said surrogacy agreements.

That everyone’s prime concern is the surrogate baby otten leads to the surrogate mother being
deprived of the adequate medical needs of the surrogate mother. There can be questions
raised about the quality of maternal care that the surrogate mother gets. Post-natal care of the
surrogate mother is often very negligent and sometimes non-existent, which leads to a high
mortality among the surrogate mother post delivery of the child.

Many believe that the said practices are violative of The Convention on the Elimination of
All Forms of Discrimination against Women, 1981, whose Article 6 puts a duty on the State
to ensure suppression of all forms of trafficking and exploitation of women, and Article 11(f)
requires the State to make sure that there are proper healthcare and working conditions of
women, which also includes the right to proper reproductive conditions
 Conclusion

Surrogacy as a practice can be passively thought to morph into a lot of social forms. There
can be different degrees, or extent of commercialization in both public and private forms,
although the exact nature of both could only be adequately understood by the degree of legal
and legislative flexibility that can be afforded to the same. What the exact legislative backing
surrogacy gets depends on not only the legislators trying to define the public’s general stance
on the topic but also them trying to incorporate the medical, legal and ethical nuances that
arise. In solving legal conundrums, while it can be safely said that the surrogate child’s rights
should be given most importance, the legislations should try to balance the two conflicting
rights of the commissioning parents and the surrogate parents in order to harmonize them
both. For example, if the gestational mother experiences a ‘change of heart’ i.e. the surrogate
mother does not want to give up the child she entered into the contract for 13, then the
legislation might requite the said contracts to be rendered voidable at the option of the
biological mother, or that there would be a waiting period for the biological mother to decide
whether she wants to give up the child or not. Any decision taken later than that would not
have any force in law.

13
Id.