Here's why new ART and Surrogacy regulation bill are out of step with contemporary societal and judicial trends, explains Bhavdeep Kang

Here's why new ART and Surrogacy regulation bill are out of step with contemporary societal and judicial trends, explains Bhavdeep Kang

Back in 2016, this column had described the draft Surrogacy Bill as a ‘nanny state’ law. The version approved by the Union Cabinet earlier this year was much like the old one.

Bhavdeep KangUpdated: Friday, December 10, 2021, 08:53 AM IST
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Here's why new ART and Surrogacy regulation bill are out of step with contemporary societal and judicial trends, explains Bhavdeep Kang | Unsplash

The Assisted Reproductive Technology (ART) and Surrogacy Bills passed by the Rajya Sabha could well open a judicial can of worms. Out of step with contemporary societal and judicial trends, they are informed by an outdated heteronormative and patriarchal orientation.

Back in 2016, this column had described the draft Surrogacy Bill as a ‘nanny state’ law. The version approved by the Union Cabinet earlier this year was much like the old one. The difference in the 2020 Bill was that single women(widows and divorcees), as well as ‘infertile married couples’, could take advantage of ARTand surrogacy and that any ‘willing’ individual (not necessarily a family member) could serve as a surrogate.

The ART and the Surrogacy Bills must obviously be seen in conjunction. The former refers to IVF (in vitro fertilisation) or ‘test tube’ mating of gametes, and the subsequent transfer of the resulting embryo to the uterus. A donor egg or sperm may or may not be involved. The latter Bill refers to the transfer of the said embryo to a consenting third party, who then carries it to term.

The laws come across as retrogressive and poorly drafted and are riddled with loopholes. For instance, the insistence that only ‘infertile married couples’ and ‘women’ could be permitted access to reproductive technology. Second, the limitation of egg donors to ‘married’ primiparous (having given birth) women, with a child at least three years old.

Obviously, the legislations are heavily weighted against LGBTQ couples/individuals and bachelors, and unnecessarily exclude those in live-in relationships. Given that the judiciary recognises ‘living in’ as a valid relationship, the term ‘married’ should be dropped in favour of ‘co-habiting’, particularly as gay marriage is yet to be legalised. Nor should a ‘certificate of essentiality’ be mandatory, as it reduces humans to their physiology.

What if a fertile couple/woman wishes to opt for ART, owing to a genetic trait that they do not want passed on to their child, or simply to cryo-preserve embryos/gametes for the future? What if a single, nulliparous woman wishes to donate an egg to her friend/relative? The choice should be hers, and hers alone. The state should not dictate the reproductive choices of an individual, single or otherwise. As Congress MP Karti Chidambaram observed in the Lok Sabha, “This reeks of patriarchy.”

Nothing stops any half of a lesbian couple, or the female half of a heterosexual couple, from accessing ART as ‘women’. The use of the term ‘married’ achieves nothing, but creates the impression that the law considers those who are unmarried as less equal than others: if a couple chooses to keep the state out of their relationship, the state will deny them access to reproductive assistance.

And what do we mean by ‘woman’, anyway? If it is someone capable of giving birth, then trans-men, who identify as men and are not on hormone therapy, can give birth. So can nonbinary, gender fluid and agender people, if they are ‘assigned female at birth’ (AFAB), i.e, anyone born with a uterus or having received a uterine transplant. (The latter category thus far comprises only cisgender women - those identifying with their birth gender).

To imply that only someone who is ‘assigned female at birth’ is capable of nurturing a child is absurd. Where does that leave transgender women? They cannot give birth, but identify as women. Should they not be able to apply for surrogacy using their own cryo-preserved sperm, despite having been assigned male at birth? The legal issues at play here will keep the courts busy for years.

Given that gender is a spectrum and neither binary nor static, laws on reproductive rights should not take a heteronormative approach. The point is that the scenario is complex and demands inclusivity, whereas the laws themselves are exclusionary. To cite Chidambaram again, “This (ART)law has not come from the Hindu liberal traditions. This law has come from the completely regressive, Victorian, and colonial mindset.”

If Mitch and Cam, the engaging gay couple in the sitcom Modern Family had been Indian, they’d never have been able to adopt their daughter Lily. A bachelor is not eligible to adopt a girl child and gay marriage is not recognised. Nor would they have been able to opt for surrogacy or ART. The only avenue for parenthood open to a gay couple is for one of them to adopt a male child.

In stark contrast, the judiciary has been vigorous in protecting the rights of the LGBTQ community. In a recent lecture, Justice D Y Chandrachud highlighted the marginalisation of those who “identify with a specific sexual orientation or are in other ways different from what is considered to be the norm”. Referring to the ‘decriminalisation’ of homosexuality by the apex court, he said, “one of the effects of Section 377 was to reduce the identity of all members of the LGBTQ community to their sexual relationships alone”.

High courts have passed judgments laying down norms for according protection to same-sex couples and prevented sacking of employees on grounds of sexual orientation. Petitions on the right to gay marriage are even now being heard in the courts. Not surprisingly, the Centre has opposed the plea.

The LGBTQ community’s fight for recognition is far from over. Nor is that of women who refuse to be infantilised or controlled by the nanny state. It’s that time of the year again, when Articles 14 and 21 (right to equality and liberty) must be pulled out, dusted off and waved under the collective nose of the well meaning but short-sighted powers that be.

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