NO SURROGACY FOR SAME-SEX COUPLES IN INDIA?

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Overview

The Lok Sabha passed The Surrogacy (Regulation) Bill, 2019 on August 5, 2019, amid the more controversial bill which abrogated Article 370. The Bill aims to regulate the surrogacy treatment preferred by modern couples who could not conceive a child. Thereafter the bill was referred to a Select Committee on November 21, 2019. Its report was submitted on February 5, 2020, and now Rajya Sabha’s consent is awaited to make it an Act. The Bill has narrowed the scope of surrogacy in many ways which would be discussed in the following sections.


The Surrogacy (Regulation) Bill, 2019


Firstly, the Bill prohibits commercial surrogacy and only allows altruistic surrogacy. The surrogate mother should be a close relative of the intended couple. She must have a child of her own and she should be aged between 25 to 35 years. While a change allowing any “willing” woman to be a surrogate mother is approved. It is yet to be passed from the lower house.

Secondly, the couples have to fulfil the eligibility criteria mentioned in the Bill. They must have been married for at least five years. The wife must be aged between 23 to 50 years and the husband between 26 to 55 years.

Lastly, the Bill intends to make National and State Surrogacy Boards look after and effectively guide the whole process. The Boards are also responsible for suggesting policies to the central government.


Issues with the Bill


The Bill has a need-based approach towards surrogacy. In a world where individuals are more aware and vocal about their rights, the Bill could become a blot. It is restricting the autonomy of individuals in the guise of regulating it.
Seeing the trend of late marriages and also live-in relationships most of the regulations imposed by the Bill seems unrealistic. For example, the Bill specifies that a couple has to wait for at least 5 years before opting for this method. Now if a newly married couple, both around 30 years knows they won’t be able to conceive, the five years waiting period is unreasonable.

The Bill allows surrogacy only for a married couple. It conveniently ignores the couples in live-in relationships, same-sex couples and single parents. Had it been proposed 40 years back, no such questions would have been raised. We live in a 21st-century enlightened society. The Bill just not fits in today’s world.

What does it have for same-sex couples?


The Bill disappoints same-sex couples by ignoring them from the context. It specifically mentions that a heterosexual couple can only opt for surrogacy.
Homosexuality though still a taboo but is not unknown to society. Slowly and steadily the LGBTQ community is gaining acceptance and validation from society. Wholly integrating them into Indian societies is still a far-fetched dream at least in suburban and rural India. But the urban society is becoming more accommodating for all groups of people.
Had same-sex marriage been legal and recognised in India, such issues could have been reduced. But even after decriminalising section 377 of the Indian Penal Code (which made homosexuality a punishable offence), there is no rule or act which validates same-sex marriage.


Way ahead

Though the Bill has not been passed by both the houses, this would likely be done in the ongoing monsoon session. The issues raised by the public are being ignored continuously by the government.
PILs have been filed by various individuals and organisations, but the decision is yet to come. The government is fully aware of the lacunas and blunders that this Bill has, it is for the public now to stand up more strongly for their rights. There needs to be more acceptance of the LGBTQ community with regards to surrogacy, especially homosexual couples. This is the only possible way out of this issue.

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