By Aaryan Bansal
With a Child's birth, a Parent is born too.
Surrogacy: A Brief Overview
At the very outset, Surrogacy is an agreement where a woman labours a child on behalf of another couple or single parent who will become the child’s parents after birth. People often seek surrogacy when they are unable to labour themselves either due to medical reasons or in the case of a single parent.
There are two main types of surrogacies: traditional and gestational. Traditional surrogacy involves using the surrogate's own egg and the intended father's sperm to create the embryo. Gestational surrogacy, on the other hand, involves using the intended mother's or a donor's egg and the intended father's or a donor's sperm to create the embryo. The embryo is then implanted into the surrogate's uterus.
The morality of surrogacy has been a topic of contention since forever. On one hand, it can be a positive experience for the surrogate herself. They are often screened, supported and compensated for their time and effort. In addition to that they have the opportunity to help someone else start a family. On the other hand, it can be mentally draining for the surrogate as well. The surrogate often gets so attached to the child that it becomes difficult for her to give up the baby.
The same has been established through a study by Oxford[1] where it was discovered that out of 34 women:
“Eleven women (32%) experienced some difficulties in the weeks following the handover, and one surrogate mother experienced moderate difficulties. The remainder reported no difficulties. Five women (15%) reported some difficulties a few months after the handover, and the remaining 29 (85%) reported no difficulties. The number reporting some difficulties had decreased to only two (6%) at one year on, with 32 (94%) reporting no difficulties.”
In consequence, it becomes of utmost importance to reflect upon the various ethical and legal implications of surrogacy. It is salient to ensure that surrogates are not being coerced or exploited and that every party involved understands the potential risks and benefits. Placing legal agreements and protections in place becomes a paramount concern for the protection of the rights and responsibilities of all parties.
LGBTQIA++: Introduction
The LGBTQIA+ community is a diverse group of individuals that do not identify themselves in the traditional gender spectrum of only male and female or do not restrict themselves to only heterosexual relationships. The community identifies itself as lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, or any other sexual orientation or gender identity that is not heterosexual or cisgender.
The LGBTQIA+ community in India has a long and rich history. The Naz Foundation, the very first recognised LGBT rights organisation, was created in 1994. In 2009, the Delhi High Court issued a judgement rendering same-sex sexual conduct legal under Section 377 of the Indian Penal Code.
The order, however, was overruled by the Supreme Court in 2013.
However, in the Navtej Singh Johar[2] case, the Supreme Court ruled on Section 377 again in 2018, affirming the Delhi High Court's verdict and decriminalising same-sex sexual conduct.
Despite legal accomplishments, the LGBTQIA+ community continues to be marginalised and discriminated against. LGBTQIA+ individuals often find themselves to be the focus of violence and harassment in numerous sections of the country. In addition, they might face prejudice in employment, housing, and education.
The LGBTQIA+ community in India is a resilient and vibrant community. Despite the difficulties, they continue to fight for equality and acceptance. The community provides strength and support to its members and is a driving force for change in the country.
Surrogacy and Same-Sex Parenthood
Surrogacy itself is a contentious issue especially when it comes to LGBTQ+ individuals. People are both against and in support of surrogacy. While some are of the view it goes against traditional family values and that it is a form of violation, others believe that it is a viable substitute for people and couples who want to start a family.
In the Author’s opinion, however, surrogacy can be a lifeline for same-sex couples and individuals.
Having a child is a joy every living organism has the right to experience. Surrogacy can enable such couples to have a meaningful biological connection with their child. Meaningful in the sense that even in the modern contemporary world and a democratic society like India, same-sex couples are to date frowned upon and have to experience a lot of discrimination or rejection from biological family members. Surrogacy paves the way allowing them to experience the joys and challenges of parenthood, just like any other “normal” family.
Overall, surrogacy can be a valuable option for same-sex couples and individuals who want to become parents. While there are valid concerns around surrogacy, these can be addressed through careful screening, support, and legal agreements. Ultimately, the decision to pursue surrogacy should be a personal one, made with careful consideration and respect for everyone involved.
For same-sex couples and individuals, starting a family can be a challenging and emotional journey. Against disapproval and discrimination from society, surrogacy poses a way forward. Same-sex couples can actually enjoy the joys of parenthood this way.
Indian Legislation
In 2002, the Indian Government legalised commercial surrogacy in the nation. None of the legislation prohibited or restricted same-sex couples from using a surrogate to bear a child. However, soon after, the Government realised the repercussions of the same. The surrogates were exploited and coerced. In need of money, women started selling off their wombs. In lieu of this, in 2019, the Indian government passed the Surrogacy (Regulation) Bill[3].
The bill criminalised commercial surrogacy and limited surrogacy to altruistic purposes. Only married couples, who have been married for at least five years and were unable to conceive a child naturally were allowed to hire a surrogate. The bill sought to protect the rights of surrogate mothers and children born through surrogacy.
The Surrogacy Regulation Bill, despite being a just and fair legislation, turned out to be unfavourable for same-sex couples as this effectively excludes same-sex couples from accessing surrogacy in India.
Prior to the passing of the Surrogacy (Regulation) Bill, surrogacy was a more accessible option for same-sex couples in India. It allowed them to have a biological child without having to go through the more complex process of adoption. Additionally, surrogacy gave same-sex couples the chance to have a genetic bond with their offspring.
While Indian legislation does not provide any relief to same-sex couples in India, those couples who wish to start a family through surrogacy may be able to do so pursuant to a legal loophole.
The Surrogacy (Regulation) Act of 2019 does not expressly prohibit surrogacy for married same-sex couples.
As a result, some same-sex couples who married in a foreign nation were enabled to have children through surrogacy.
However, the legal discrepancy is not impermeable. The government has been cracking down on same-sex surrogacy agreements. In 2021, for example, the authorities confiscated a surrogacy facility in Mumbai that was assisting same-sex couples in conceiving children. The clinic was shut down, and the workforce was arrested.
In conclusion, while surrogacy was formerly a possibility for same-sex couples in India, current law has curtailed their access to surrogacy services. It is still a contentious topic, and individuals and couples should carefully explore their options and engage with reliable surrogacy agencies
Interesting insight. Cheers to the hardwork. Looking forward to more articles from you.
Thoroughly explained. Easy to understand. Brilliantly written. Kudos, Aaryan!