On September 9, 2008 the Supreme Court of India disposed off a writ petition filed by Ms. Emiko Yamada, a Japanese national appealing for the custody of her grandchild born of commercial surrogacy, which the Rajasthan High Court had denied in order to prevent the social malaise that was the commercial surrogacy industry flourishing in the country at the time. The said grandchild, Manji Yamada had been born from the sperm of her intended father, Dr. Ikufumi Yamada, and the egg of an Indian donor to an Indian surrogate in the major commercial surrogacy hub of Anand, Gujarat. After Baby Manji’s birth, her father, by then-single parent Dr. Ikufumi Yamada faced administrative difficulty from both India and Japan in bringing the child home, with the Japanese government demanding that he formally adopt the child and get her an Indian passport before issuing her a visa to come to Japan, and the Indian government neither extending his or his mother’s visa, nor providing the child, by then in Jaipur, Rajasthan, a passport. Not deliberating on the question of legality of commercial surrogacy, the Supreme Court decreed for the government to expedite the extension of Ms. Yamada’s visa and issue a passport in favour of Baby Manji. The “Baby Manji case” heralded a movement that changed surrogacy law in India, rendering it completely inaccessible to foreigners.[1]
The word “surrogate”, derived from the Latin word subrogare, means to be appointed to act as a substitute. The institution of surrogacy comprises a surrogate mother gestating and delivering a child in accordance with an agreement with the “intended parents” with the intention of relinquishing this child to them upon birth. In “traditional surrogacy”, the child is conceived through the artificial insemination of the surrogate’s gamete with the intended father’s sperm, and goes on to be raised by the intended father with his spouse. In “gestational surrogacy”, an embryo fertilised with the gametes of the intended parents, or of one of the intended parents and a donor is transferred for gestation into the surrogate’s womb, with the surrogate thereby becoming the “gestational carrier”. [2] According to some thinkers, the expansion of artificial reproductive technology and more specifically, surrogacy has led to a change in the family structure, with many parties exercising filial rights over the child according to the diverse legal systems of different countries. The legal parents of the child born from surrogacy thus may be the genetic mother or the genetic father, more specifically, the gamete donors; the gestational (surrogate) mother and her husband; or one or more ‘commissioning parties’ or the ‘intended parents’.[3]
Surrogacy may further be either commercial, where a gestational carrier is paid a good amount by the intended parents as consideration for her promise to carry a foetus to maturity in her womb, or altruistic, where the surrogate receives only the basic expenses sufficient to finance the pregnancy and birth. Many thinkers argue that the widespread commercial surrogacy system leads to commodification of both the surrogate mother and the child, the latter violating the “best interests of the child” doctrine in the Convention on the Rights of the Child.
The absence of an international legal framework focusing on surrogacy and the diversity of national laws regulating it leads inevitably to a legal and administrative struggle between the contracting states: the country of origin of the intended parents and that of the birth of the child. The inter-country adoption of children, on the other hand, is governed by the “Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption” (the Hague Convention) concluded by the Hague Conference on Private International Law in May, 1993. The Hague Convention on adoption makes the best interests of the child paramount in the adoption process, which is essentially different from surrogacy on two fronts: The conception, gestation and birth of the child is not undertaken by its mother for the sole purpose of giving it away to the “commissioning parents” — the transfer of the child from the biological to adopted parents occurs only when it is the last option commensurate considering the child best interest; and adoption is essentially altruistic in nature, aiming to help childless parents get a child and the parentless child get a well-adjusted family, with there being no transfer of money in the process.
The Hague Convention outlines the duties of the “contracting states”, and the child’s rights along with the adopting family as a vital aspect of regulating inter-country adoption. It recognises that a family is important for the psychological development of the child, and postulates that any recourse to intercountry adoption must be taken only if opportunities for the same within the country of origin have been exhausted; there must be a constant engagement between the country by birth and the adopting state; it must be ensured prior to adoption that the child is adoptable and the parents are capable of adopting, and that all the parties (the child, adoptive parents, and the biological mother) are appropriately counselled. In particular, Article 30 of the Convention imparts the information pertaining to the medical history and identity of child’s parent preserved by the states and provide selected information accessible to the adoptive parents and the child as permitted under the state law.
The increasing application related to assisted reproductive technology since the 1980s and 1990s and the decreasing opportunities for international adoption has led to a “generalisation of international surrogacy”. [4] However, in the absence of an overarching international framework regulating states’ laws relating to nationality and parentage, many legal and ethical challenges have become attached to international surrogacy, which more often than not tend to infringe upon the basic child’s rights to have an official name recognized by state of birth, nationality and to get cared by his birth parents, outlined under Article 7 of the Convention on the Rights of the Child, 1989.
Inter-country surrogacy mostly helps persons of countries that do not provide access to surrogacy, to get an offspring taking advantage of the laws (or lack thereof) of countries that do. These persons, however, may not be able to get legal parentage over the surrogate child when they go back to their country of origin, where such parentage is not recognised owing to commercial surrogacy being banned either completely, or to selected groups that the person(s) belongs to (single or same-sex couples). They might have to adopt the child in their country of origin to be granted legal parentage, even though one of the commissioning parents may be the biological parent of the child, creating a “legal fiction” regarding the child’s parentage.
The Native state of the parents and the state of surrogacy may recognise different forms of granting parenthood and nationality. Some countries, such as the United Kingdom apply the birth test, where the birth mother (surrogate) is recognised as the legal parent; Others apply the genetic test, where the gamete donors may be recognised as the legal parents; Yet others, like Greece, apply the intention test, where the intended parents are given legal parenthood.[5]
In Mennesson v. France, a French couple, who had resorted to surrogacy in California and begotten twins over whom they were granted legal parentage under Californian law, were not granted the same parentage rights by the Court of Cassation in France, forcing them to approach the European Court of Human Rights. Noting that the non-recognition of parentage, and consequently, nationality of the children impacted the children’s rights of voting, inheritance, residence, social security and education, the Court recognised the legal child-parent relationship to be an important part of a childʼs identity, and in view of the best interests of the child, decreed the legal parentage of the intending parents. [6]
In Re X & Y, a British couple, having acquired twins via surrogacy carried by a Ukrainian surrogate, were recognised as the legal parents in Ukraine, which accordingly granted the twins neither citizenship nor permission to remain in the country. However, owing to commercial surrogacy being illegal in the UK, the Ukrainian surrogate and her husband were recognised as the twins’ legal parents there and the children were accordingly granted neither British nationalities nor the appropriate entry requirements, leaving them “marooned, stateless and parentless”.[7] The UK High Court, as often happens, granted the children exceptional rights of entry in view of their ‘best interests’. However, these decisions rely on the court’s discretion and the facts as presented in case, lending precarity to the identity of the child.
While there is no multilateral convention on inter-country surrogacy similar to that on adoption as yet, provisions of the United Nations Convention on the Rights of the Child, 1989 (hereinafter “the Convention”), the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and comments and judicial precedents from the Committee on the Rights of the Child (hereinafter referred to as “the Committee”) and the European Court of the Human Rights (ECtHR) provide a framework for the same.
Articles 2 and 3 of the Convention provide for non-discrimination in the protection of the rights of the child irrespective of their ‘birth or other status’, and the states’ responsibility to ensure the “best interests of the child” in all measures related to children, whether taken by legislative bodies, courts of law, social welfare institutions, etc., respectively. Therefore, no decision related to surrogacy that has implications for children should violate their rights and children should not be discriminated against by the state owing to the fact of their birth through surrogacy.[8]
The significance of the child’s right to a family is best recognised in Article 5 and the Preamble to the Convention. The importance of the role of parents, legal guardians or, where applicable, the members of the extended family or community in providing guidance and direction in the child’s exercise of his rights has also been recognised.
The Preamble to the Convention recognises the family as the fundamental constituent of society as it creates a nurturing environment for the well-being and proper growth of children, and provides that the family should be given the necessary support so as to be able to undertake its responsibilities within the community. A family environment, where the best interests of the child are the parents’ basic concern, is considered crucial for a child for the ‘full and harmonious development of his or her personality’. [9]
The understanding of the family being central to the realisation of children’s rights is an important theme in international law. This is indicated by the fact that international conventions urge the states to prevent the separation of children from their parents, and in case such separation is seen to be necessary by the competent authority for the best interests of the child, the state must make urgent efforts to ensure alternative care for the child in a family-like environment[10] .
A new theoretical approach also understands Article 5 as establishing a child’s right to “Family Support”, a theory which sees as crucial the state’s efforts in strengthening families, preventing family breakdown and ensuring early intervention in families deemed at risk, so as to achieve the ultimate aim of promoting and protecting the health, well-being and rights of all children and young people.[11]
Article 7 of the Convention establishes the child’s rights to registration upon birth, a name, a nationality, and to know and be cared for by his/her parents as far as possible. The Committee on the Rights of the Child has held that ‘the absence of such basic documentation may hamper the implementation of a child’s other rights…’[12], and that birth registration is one way of securing the child’s right to identity under Article 8 of the Convention. The expression “as far as possible”, if read as allowing for logistical error or informational inadequacy of the state itself, can be interpreted as leaning towards providing children with access to information, where it is available, about their biological parents before they reach the age of 18.[13]
While the Convention does not define the term ‘parents’, it could be interpreted to broadly include one’s genetic, gestational or intending parents vis-a-vis the Committee’s broad interpretation of a ‘family’ as including the ‘biological, adoptive or foster parents, or members of the extended family or community’[14]. This, read with Article 8 of the Convention, which protects the child’s right to preserve the major aspects of their identity: their nationality, name and family relations without unlawful interference from the state, and Article 13 of the Convention and Article 10 of the European Convention on Human Rights, which together state that every person’s right to freedom of expression includes the freedom to seek, receive and impart information without state interference and irrespective of frontiers, entitle the child born of ART to seek information about their surrogate parents and/or donors.
However, it is here that a dilemma arises with regards to the right to information about child’s parentage and the right to uphold the privacy of the surrogates and donors. This caveat has also been highlighted in the words “as far as possible “of Article 7 of the Convention, and in Article 13(2a) of the Convention which makes the child’s right to seek and receive information subject to the “rights and reputation of others”. In Odièvre v. France, the applicant’s argument was that the French state’s restriction on her gaining access to identifying information about her natural parents and brothers in order to reconstitute her personal history constituted a violation of her right to private life under Article 8, even though she was born under a special procedure that allowed anonymity to her mother. The European Court of Human Rights, while upholding Article 8 in its statement that birth, and in particular the prevailing circumstances at the time of child birth, considers to be a part of a person’s private life, passed a judgement allowing only the release of non-identifying information about her mother and natural family in order to fairly balance the competing interests of the applicant, her natural family requesting privacy, and the state’s interest in protecting the mother’s and child’s health prior to and during delivery and to prevent illegal abortions.[15] In Rose & Anor. v. Secretary of State for Health and Human Fertilisation and Embryology Authority[16], it was held that for a child born from Artificial Insemination by Donor (AID), Article 8 of the European Convention includes a right to access information about biological parents, and this decision in turn led to legislative change eliminating donor anonymity in the UK.
Different scholars have different opinions regarding the free access of identifying information of donors or surrogates to children and the intended/social parents. It has been pointed out that while international law establishes a presumption in favour of providing information about their genetic origins to the children, the laws of different states tend to make available identifying information (if so permitted) about the donor/surrogate to the child only after 18 years, with any access to information prior to this being contingent on the consent of the social parents. Thus, a child born of a donor might acquire such information only after reaching adulthood, and witness their identity development, self-esteem and value of the principles of trust and honesty being compromised as a result.[17] This requirement of parental consent is based on the assumption that the child’s best interests, as required to regulate all provisions of the Convention, are best understood by their social parents/guardians, when their best interests must be understood in accordance with empirical evidence in which the views of children must be given due weight according to their age and level of maturity[18], as per Article 12 of the Convention.
On the other hand, it is argued that while the disclosure of medical information (non-identifying information) about the donor to the child is justified for therapeutic reasons since the child’s right to health must outweigh the rights of his biological parents to privacy, and identifying information might prevent the marriage of two offspring of the same donor, unleashing “a whole host of preventive medicine benefits”, the release of identifying information about the donors may lead to the offspring trying to establish contact and intruding on another family’s privacy, and might prevent the birth of future children through such “collaborative arrangements”.[19] Thus, the debate on the right to identity and access to information of child in contradistinction with the right to privacy of their natural families and concerns of public policy continue to shape the state laws relating to the child’s rights to family and identity.
In conclusion, for the effective protection of the rights to identity and family of the children born of surrogacy, a basic international legal framework providing common legal solutions to problems of parentage and nationality arising out of diverse national stances on commercial surrogacy, parentage and citizenship rights, is crucial. Further, it is important that in the question on the access of information relating to the child’s genetic origins, the international law’s presumption in favour of such access to the children must be recognised at the state level, and in agreement of Article 12 of the Convention, the child’s viewpoint must be taken into account with regards to their age and level of maturity while legislating on their fundamental rights to identity and family.
[1] McLatchie Lois & Lea Jennifer. Surrogacy, Law and Human Rights. ADF International. pp. 28-29 (2022).
[2]Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008 (AIR 2009 SUPREME COURT 84)
[3] McLatchie Lois & Lea Jennifer. Surrogacy, Law and Human Rights. ADF International (2022).
[4] Gonzales, Noelia Igareda. Legal and ethical issues in cross-border gestational surrogacy. American Society for Reproductive Medicine. Fertility and Sterility® Vol. 113. pp. 916-19 (2020).
[5] Gonzales, Noelia Igareda. Legal and ethical issues in cross-border gestational surrogacy. American Society for Reproductive Medicine. Fertility and Sterility® Vol. 113. pp. 916-19 (2020).
[6] Mennesson v. France. 2014-III Eur. Ct. H.R. 255.
[7] Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733
[8] Katherine Wade . The regulation of surrogacy: a children’s rights perspective. Child Fam Law Q. 2017 June 29; 29(2): 113–131 (2017).
[9] UN Convention on the Rights of the Child. General Assembly resolution 44/25 (20 November 1989). Entry into force (2 September 1990).
[10] UN Guidelines for the Alternative Care of Children (GACC, 2010).
[11] Patrick Dolan, Nevenka Zegarac, and Jelena Arsic. Family Support as a right of the Child. Article in Social Work and Social Sciences Review · DOI: 10.1921/swssr.v21i2.1417 (May 2020).
[12] Committee on the Rights of the Child, Concluding Observations for Honduras, CRC/C/15/Add24 para 12.
[13] J Tobin. The Convention on the Rights of the Child: the rights and best interests of children conceived through assisted reproduction. Victorian Law Reform Commission. pp. 37 (2004).
[14] Committee on the Rights of the Child. General Comment No 14 (2013), On the Right of the Child to Have his or her Best Interests taken as a Primary Consideration (art 3, para 1), (CRC/C/GC/14), at para 59.
[15] Odièvre v. France (Application no. 42326/98) 13 February 2003 European Court of Human Rights.
[16] Rose & Anor. v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] EWHC 1593.
[17] McNair, R. & A Turner and A Coyle (2000) cited in J Tobin. The Convention on the Rights of the Child: The rights and best interests of children conceived through assisted reproduction. Victorian Law Reform Commission. pp. 37 (2004).
[18] J Tobin. The Convention on the Rights of the Child: the rights and best interests of children conceived through assisted reproduction. Victorian Law Reform Commission (2004).
[19] Basu, S. Genetic privacy: Resolving the conflict between the donor and the child . Current Science , 25 May 2004, Vol. 86, No. 10 (25 May 2004), pp. 1363-1365. https://www.jstor.org/stable/24109203 .