By Adeena Jamal:
Surrogacy refers to an arrangement in which the surrogate is the child’s genetic mother. The woman’s egg is fertilized in a laboratory using sperm from the man who wishes to raise a child. This form of surrogacy may be used by a woman with medical issues that affects her ability to ovulate normally. This agreement is a contract between the persons availing assisted reproductive technology and the surrogate mother. With the proliferating technological development, the medical arena has also advanced and thus, the several technologies provide better facilitation for new age birth methods. Surrogacy challenges traditional ideologies of the concept of parenting. Therefore, several legal complications are a part of surrogacy.
India reformed its policy towards surrogacy by passing the Artificial Reproductive Technology (Regulation) Bill, 2010. Approximately 15% of the couples across the world are infertile. Thus in the interest of infertile couples, surrogacy is a viable option. In the purview of the supplementary complexity, it is vital to regulate the functioning and the entire process. Also, the clinics that operate upon surrogate couples need to ensure that the services provided are ethical and that the medical, social and legal rights of all those concerned are protected. Still, it remains nebulous whether gay couples possess the right or not to have a surrogate relationship.
Surrogacy, in a stereotypical reference, comprising of a sperm donor, the lady who agrees to pregnancy achieved through assisted reproductive technology and a person who is not a sperm donor from the couple.
Now, surrogacy acts a relief only for married couples. The ART (Regulation) Bill, 2010 defines “couple” as two persons living together and having a sexual relationship, that is legal in India. In India, it is still uncertain regarding the route through which unmarried gay couples might enter into a surrogacy agreement. However, Section 377 of the Indian Penal Code, 1860, outlaws homosexuality in India; while a 2009 Delhi High Court verdict effectively decriminalized it. So the entire point of contention lies whether a gay couple has the legal rights to have a surrogate agreement with a woman who is ready to provide with a womb. Married homosexual couples (from countries where gay marriage is legal) can have their surrogate child in India. However, unmarried gay couples may not be able to seek surrogacy in the country, as the bill defines “unmarried couples” as: “A man and a woman, both of marriageable age, living together with mutual consent but without getting married.”, including homosexuals residing in India as well.
Now the entire flaw in the bill is why gay couples are not allowed by the ART bill to have surrogate mothers. With a more open minded society, the requirement of the hour is to allow gay couples to have surrogate mothers.