Surrogacy in India May Now Be A Heterosexual, Married Privilege

Sushma Swaraj said that the draft law prohibits LGBTQI community, live-in couples and single parents from surrogacy.

Commenting on the Bill, Swaraj said that the new bill prohibits LGBTQI community, live-in couples and single parents from going in for altruistic surrogacy. (Photo: iStockphoto)

Surrogacy in India is marked by horror stories of exploitation, and as it has been widely argued, is in dire need of regulation. This is why when the Cabinet passed the draft Surrogacy Bill, 2016, there were expectations that the Bill would protect the interest of the surrogate women.

Instead, what we got are archaic notions of Indian culture, marriage and parenthood. Commenting on the Bill, Swaraj said that the new bill prohibits LGBTQI community, live-in couples and single parents from going in for altruistic surrogacy.

Also Read: Surrogacy for Gay Couples is Against Our Ethos: Sushma Swaraj

According to the new draft Bill, commercial surrogacy in India will be banned completely and only legally-wedded couples can opt for surrogacy, only after they have been married for five years.

Welcome to the Great Indian Parenthood Circus. Let’s take a tour, shall we?

Altruistic vs Commercial Surrogacy

Under the new law, commercial surrogacy shall be a punishable offence with imprisonment of up to 10 years. But activists and surrogacy experts have been arguing that what is needed is regulation of commercial surrogacy, not banning it.

The ban might lead to an expansion in the illegal surrogate market, where vulnerable women from economically-weaker sections of society might be at a greater risk of exploitation.

There is a lack of transparency as far as surrogacy is involved. The demand for regulation was because there was a need to protect the vulnerable women involved. This goes way beyond that. A lot of people will be caught completely unawares. 

Kishwar Desai, Author and Columnist

Women’s agency in surrogacy is inherently fragile and consent from a surrogate mother could be manipulated for financial reasons. This is precisely why commercial surrogacy demands stricter regulation which focuses on protecting the right of the woman to her body.

Since when has banning anything led to a decrease in demand?

Also Read: Banning Surrogacy in India Will Drive It Underground

And more importantly, what about those couples who do not have the ‘altruistic’ option for surrogacy?

No Homosexuality or Live-In Relationships, Please

This draft law makes no sense. When you are excluding homosexual couples, single parents and live-in relationships, you are violating the basic right to reproduce. What is the relationship between being married and having a child? 

Hari Ramasubramaniam, Chief Consultant, Indian Surrogacy Law Centre

Or, what is the relationship between identifying as LGBTQI and having a child?

Indian culture, apparently.

On being asked why the option of surrogacy is denied to homosexual couples, Sushma Swaraj said:

You can say it (allowing surrogacy for homosexual couples) is looking forward and we can say this doesn’t go with our ethos. 

Sushma Swaraj

Excluding homosexual and live-in couples from the option of availing surrogacy puts heterosexuality on a pedestal, heterosexuality that comes with being married, to be specific. Not only do the exceptions violate fundamental rights, they also inherently imply that parenthood is a privilege.

As for the ‘cultural ethos’ argument, Indian culture is not a monolithic entity for someone to appropriate, and it never was. Strains of the ‘culture’ argument are brought to the fore whenever the institution of marriage is threatened, or even stretched to include other ‘families’. (Remember the argument against marital rape?) And this time, it is no different.

To make matters worse, the new draft law stipulates that only after a heterosexual, married couple has been married for five years, will they be allowed to go for an ‘altruistic’ surrogacy.

Anyone who is suffering from infertility, will not be in agreement with the draft Surrogacy Bill, 2016. 

Hari Ramasubramaniam, Chief Consultant, Indian Surrogacy Law Centre

The Surrogate Bill, 2016 is a draft law and may undergo changes when it is introduced in the Winter session of the Parliament. But the fact that the Union Cabinet of India passed a law which deliberately deprives a section of society from availing the option of surrogacy, and does it by justifying the sacred nature of marriage and the fabric of Indian culture, is worrying.

Regulation doesn’t imply arbitrary blanket bans, and one hopes that when the Bill is up for discussion, our Parliament remembers that.