Surrogacy is a practice whereby a woman becomes pregnant to give the child to someone else upon birth. Each year, thousands of women agree to carry the child of another woman at a fee. Over 50,000 babies are born as a result on “shaky legal legs”; conceived by one set of parents yet claimed by another.
Article 1 of the Universal Declaration of Human Rights states that all human beings are born equal in dignity and rights. Human dignity is the basis of all human rights, and that is why states have the responsibility to recognize and respect them. According to the WYA White Paper on Surrogacy, surrogacy undermines the human dignity of the woman carrier as her body and its reproductive function are used as a commodity. Surrogacy also undermines the human dignity of the child, as children are treated as commodities in the markets which people can shop for. Prospective couples will seek out arrangements that maximize the value of their babies: sex, eye color, and race which will all be assessed in terms of market considerations.
The United Nations Convention on the Rights of the Child (CRC) explicitly states that every child has the right to acquire a nationality and to know and be cared for by his parents as far as possible, and to preserve his or her identity. The case of Baby Manji where; a Japanese couple arranged to have an Indian gestational surrogate carry a child for them with the husband’s sperm and donor eggs. Her intended parents separated before her birth. The intended mother, who was biologically unrelated to the child, no longer had an interest in raising her. However, the intended and biological father wanted to raise her. Therefore the newborn was found to have three different mothers and undetermined nationality illustrates violations of these rights.
Article 2(1) of the Convention on the Rights of the Child, which proscribes discrimination on the grounds of “race, color, sex, language, religion, political, national, ethnic or social origin, property, disability, birth or other status. This right is violated in another surrogacy arrangement, The case of Baby Gammy where; an Australian couple contracted a Thai woman to serve as their surrogate. Pattaramon Chanbua, the surrogate mother, became pregnant with twins but said the intended parents asked her to abort one when he was diagnosed with Down syndrome, a disability. The couple left the disabled child, Gammy, who also had other illnesses, with her in Thailand, but took his healthy twin sister to Australia.
Surrogacy poses serious problems concerning existing international human rights law norms. Alternatives should be pursued to help couples struggling with infertility which respects the lives and dignity of all involved. Medical research is leading to important discoveries about reproductive systems and can help address the causes of infertility, Programs like Fertility Education and Medical Management (FEMM) have proven effective in helping women dealing with infertility and empowering them to understand their bodies and take care of their reproductive health. Laws and programs should foster positive attitudes about adoption and help couples seeking to adopt to do so.
Published: June 10, 2021
Written by Natalie Otieno, a current Batch 2 2021 intern at the World Youth Alliance Africa office in Nairobi, Kenya.