INTRODUCTION
Technology has yet again achieved a new height, and this time it has opened doors for all those parents who are unable to bear children due to serious medical conditions, recurrent miscarriages, advanced maternal age, and so on. While this door is slowly getting its recognition, it leaves behind a trail of legal questions that need to be answered urgently. And one such issue comprises the rights of children born through this technology, popularly known as ART.
ASSISTED REPRODUCTIVE TECHNOLOGY
Assisted Reproductive Technology (ART) can be defined to encompass a range of medical procedures used to address infertility and assist individuals and couples in achieving pregnancy[1]. It has given rise to various techniques such as IVF, ICSI, IVG, etc. Among all these techniques, one of the techniques that had gained the attention of people for a very long time was IVF. Over the past few years, it has again drawn attention due to its usefulness in the field of surrogacy, leading its path from traditional surrogacy to gestational surrogacy.
SURROGACY
Surrogacy can be defined as a fertility treatment, wherein the advent of In Vitro Fertilisation (IVF) has made motherhood possible for women without a uterus, with uterine anomalies preventing pregnancies, with serious medical problems, or with other contraindications for pregnancy, to achieve motherhood through the use of an embryo created by themselves or a donor and transferred to the uterus of gestational carrier[2]. In simpler words, it can be said as a practice whereby a woman becomes pregnant with the intent of giving the child to someone else upon birth[3].
Surrogacy arrangement in the olden days could only be practised in a way, today known as the ‘traditional’ method of surrogacy, in which the surrogate mother’s ova was used to fertilise the donated sperm, thereby the surrogate mother became the genetic mother of the born child. With the penetration of technology in this field, too, now surrogacy has acquired a new face, which is known as ‘gestational’ surrogacy. Under gestational surrogacy, the gametes of the surrogate mother are not used, resulting in a situation where the surrogate mother has no biological relation with the child despite carrying it in her womb.
Surrogacy can also be classified based on the agreement made between the surrogate mother and the intended parents. In accordance with it, surrogacy is of two types – namely altruistic surrogacy, wherein the surrogate receives no reimbursement for the surrogacy arrangement except for the medical and other pregnancy-related expenses along with insurance coverage, and commercial surrogacy, wherein the surrogate receives reimbursement for the surrogacy arrangement along with all the expenses covered under altruistic surrogacy. All the nations have their own laws to regulate the practice of commercial surrogacy, resulting in complete prohibition at one end and regulated permissions at the other.
While the discussions over these laws have remained consistent from olden times, a new discussion that has commanded attention recently remains that of the children born through surrogacy.
NEED FOR THE RECOGNITION OF CHILDREN’S RIGHTS
UNICEF recognises some of the risks to the rights of the child born through surrogacy, which forms the premise of the need for the recognition of the child’s rights. Some of them are as follows:[4]
Right of Child to know his Origin/Identity: There might arise some extra ordinary medical (e.g. Huntington’s Disease) situations that necessitates for the child to know his genetic and biological origins, i.e. the information about the surrogate mother or donor of gametes, which remains hidden in most cases due to the lack of recognition of the right of privacy of both parties.
Risk of Uncertainty of Legal Parentage: Sometimes, there may be a lack of a legal agreement between the surrogate and the intended parents, due to which the child, who is born out of this surrogacy arrangement and an uncertain agreement, may face a dangling situation in which he has to fight for his legal recognition. This situation becomes more complicated in conditions where the intended parents refuse to accept the child, or surrogate parents refuse to give up the child born through surrogacy. This situation may also arise in the extraordinary circumstances where the intended parents die (e.g., plane crash) before the child is born. This may hamper various other rights of the child (such as guardianship, inheritance rights), which are further linked with this right.
Risk of Lack of Nationality: In consideration of cross-border surrogacy, a child may also face the risk of lack of citizenship, especially in cases where the parents belong to a country which lacks legal recognition of surrogacy, which may render a child without any legal citizenship and consequent rights flowing from it.
Commodification and Trafficking of Children: Unregulated surrogacy may lead to vulnerable women being forced into surrogacy with fake promises and with the intention to trade the born child for profits (a recent example of this can be the Thai baby factory scandal[5]).
LEGAL FRAMEWORK FOR THE PROTECTION OF CHILDREN’S RIGHTS BORN THROUGH SURROGACY
Currently, international human rights law does not provide safeguards specifically focusing on domestic surrogacy and International Surrogacy Arrangements (ISAs), which places children born through surrogacy at risk[6]. However, some of the observations, recommendations, and principles that are helpful for the determination of child rights are as follows:
United Nations Convention on the Rights of the Child (CRC):[7] It places the children born through surrogacy at par with all other children by declaring the applicability of the same set of rights for both classes of citizens. It has also issued several recommendations linked to the issue of Assisted Reproductive Technology (ART), including surrogacy, specifically focusing on the child’s right to preserve its identity.
United Nations Special Rapporteur: In 2018, its report on surrogacy to the Human Rights Council recommended that States shall protect rights to identity and access to origins of a child born through surrogacy[8].
Verona Principles:[9] These principles are designed to respond to the urgent need for guidance for ensuring respect for the human rights of children born through surrogacy in the context of diverse State approaches to the practice of surrogacy. These principles are obligatory on the states to apply regardless of whether surrogacy is allowed or prohibited in the concerned state. This is the most detailed document laid down till now with respect to the children’s rights born through surrogacy.
Other Key Documents: These include the UNICEF and Child Identity Protection note on key considerations for children’s rights and surrogacy[10], Hague Conference on Private International Law (HCCH), which is working on the issue of identity in surrogacy matters, addressing legal parentage in cross-border contexts, as discussed in Chapter XXX[11].
With respect to the regional frameworks, the efforts still fall short of the requirements that are needed to respond to this global concern. Nevertheless, some of the significant efforts that are worth mentioning include those of the European Court of Human Rights (ECtHR), which dealt with the issue of recognition of foreign birth certificates and/or legal parentage in countries prohibiting surrogacy arrangements[12].
CONCLUSION
To date, there appears to be no significant step taken in this regard for the protection of the rights of children born through surrogacy. The identity of these children has been put into a mist, which has created a state of never-ending peril for them. It has created conditions that facilitate the environment for trafficking and exploitation of these children, thereby steadily changing the boon into a bane. To ensure the effective use of this technology, frameworks should be designed to safeguard the rights of these children and provide them with an environment in which they are born with dignity rather than a dilemma as to their identity.
Author’s Name: Gunjan Agarwal (Vivekananda Institute of Professional Studies-Technical Campus, GGSIPU, Delhi)
References:
[1] Meaghan Jain, Elisa Fang and Manvinder Singh, ‘Assisted Reproductive Technology (ART) Techniques’ in StatPearls (StatPearls Publishing 2025) <https://www.ncbi.nlm.nih.gov/books/NBK576409/> accessed 6 January 2026Top of FormBottom of Form
[2] Nayana Hitesh Patel, Yuvraj Digvijaysingh Jadeja, Harsha Karsan Bhadarka, Molina Niket Patel, Niket Hitesh Patel and Nilofar Rahematkhan Sodagar, ‘Insight into Different Aspects of Surrogacy Practices’ (2018) 11(3) Journal of Human Reproductive Sciences <https://pmc.ncbi.nlm.nih.gov/articles/PMC6262674/> accessed 6 January 2026
[3] Lois McLatchie and Jennifer Lea, ‘Surrogacy, Law & Human Rights’ (ADF International White Paper, 2022) <https://adfinternational.org/wp-content/uploads/2022/01/Surrogacy-Law-and-Human-Rights_digital.pdf> accessed 6 January 2026
[4] United Nations Children’s Fund (UNICEF), ‘Principles for protecting the rights of the child born through surrogacy’ (2021) <https://www.unicef.org/media/115331/file> accessed 6 January 2026
[5] Suspected human trafficker and Thai “baby factory” under investigation’ The Guardian (London, 14 August 2014) <https://www.theguardian.com/world/2014/aug/14/police-hunt-japanese-man-suspected-human-trafficker-bangkok> accessed 6 January 2026
[6] United Nations Children’s Fund (UNICEF), ‘Principles for protecting the rights of the child born through surrogacy’ (2021) <https://www.unicef.org/media/115331/file> accessed 6 January 2026
[7] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3<https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child> accessed 7 January 2026
[8] Special Rapporteur on the sale and sexual exploitation of children, ‘Report on surrogacy and sale of children’ (15 January 2018) UN Doc A/HRC/37/60 <https://documents.un.org/doc/undoc/gen/g18/007/71/pdf/g1800771.pdf?OpenElement> accessed 7 January 2026
[9] International Social Service, Principles for the Protection of the Rights of the Child Born through Surrogacy (Verona Principles) (2021)< https://bettercarenetwork.org/sites/default/files/2021-03/VeronaPrinciples_25February2021.pdf >accessed 7 January 2026
[10] United Nations Children’s Fund (UNICEF), ‘Principles for protecting the rights of the child born through surrogacy’ (2021) <https://www.unicef.org/media/115331/file> accessed 6 January 2026
[11] Mia Dambach and Nigel Cantwell, ‘Child’s Right to Identity in Surrogacy’ in Katarina Trimmings, Sharon Shakargy and Claire Achmad (eds), Research Handbook on Surrogacy (Edward Elgar Publishing 2023) <https://www.child-identity.org/images/files/chip-surrogacy-md-nc.pdf>accessed 7 January 2026
[12] European Court of Human Rights, ‘Factsheet: Surrogacy’ (Council of Europe, 2025) <https://www.echr.coe.int/documents/d/echr/FS_Surrogacy_ENG>accessed 7 January 2026
