“It is worth pointing out that all cis men use surrogacy services, in that they utilize the uterus and ovaries of another person in order to access reproductive possibilities, often through the extremely exploitative institution of extracting labour from cis women that society calls marriage. Speaking specifically about these laws, the wider principles of evidence-based critical thinking enshrined in the scientific method would certainly not uphold the selective application of scientific advancement or fundamental rights solely for heterosexual married people.”

—Dr Bittu KR, associate professor of biology and psychology at Ashoka University

Queer people in India exist, but their voices simply don’t reach the Parliament. By passing two regulatory laws – The Surrogacy (Regulation) Act and The Assisted Reproductive Technology (Regulation) Act – in December last year, the Government of India has once again proved how queer-ignorant it is.

While regulation in the field of assisted reproductive technology (ART) was required in our country, criminalising the access of queer people to ART and surrogacy services is discriminatory and violates the tenet of equality, upon which our Constitution stands.

This sends a blaring message - queer people are marginalised in India, their well being isn’t a priority for the law makers, and the medical policies of the government don’t take queer health into account!

What is ART?

Assisted reproductive technology “is a set of biomedical procedures that allow the generation of a fertilised human embryo, using egg and sperm from donors, in a controlled laboratory environment outside the human body.

“The fertilized embryo is then implanted in a uterus that has been appropriately prepared for pregnancy,” Dr Nishad Matange, assistant professor at IISER, Pune tells The Citizen.

Surrogacy specifically refers to “implantation of a fertilised embryo into the womb of a woman who is not the egg-donor.”

While In-Vitro Fertilisation (IVF) remains the most recognised ART procedure, some of the less well-known techniques are Intra-Cytoplasmic Sperm Injection (ICSI), Gamete Intra-Fallopian Transfer (GIFT), Zygote Intra-Fallopian Transfer (ZIFT), and Intrauterine Insemination (IUI).

Dr Matange elucidates: “These technologies are popularly viewed as ‘treatment’ modalities for heterosexual couples who are infertile. However, there is little scientific reason why the technology should not be available to anyone who chooses it.”

What are the two laws all about?

Collectively, the Surrogacy and ART Regulation laws attempt to modulate the medical practice of ART, ban commercial surrogacy (but allow altruistic surrogacy), and ‘safeguard the reproductive rights of women’.

Altruistic surrogacy has been defined as a practice where there is no monetary compensation or remuneration offered to the surrogate mother beyond ‘the medical expenses incurred on the surrogate and the insurance coverage for the surrogate’.

As per the surrogacy law, only an ‘intending couple’ - a married, heterosexual, infertile couple of 5 years (the husband between 26 to 55 years of age, and the wife between 23 to 50) with no prior children can receive the eligibility certificate to avail the benefit of this altruistic surrogacy.

The same Act also mandates that only a married woman (between the age of 25 to 35) with a child of her own can be a ‘surrogate’ mother, but no more than once in her lifetime.

And as per the ART Act, only a ‘commissioning couple’ - also a married, heterosexual, infertile couple - or a woman above the age of 21 can avail the services provided by ART.

The Acts further provide for setting up a National Board that will act as the Union government’s advisor on all matters relating to ART and surrogacy, will formulate a ‘code of conduct’ which all fertility clinics and their employees must comply with, and monitor the State Boards in the discharge of their duties. The Board will be assisted by a National Registry that will maintain a ‘central database’ containing information of all fertility clinics and banks, the services they provide, and the outcome of these services.

The Government will additionally appoint several ‘appropriate authorities’ responsible for maintaining records of clinics, banks and people who avail ART services, who will also probe any violation of the rules laid down by the National Board.

With respect to clinics and banks, the Acts further describe the procedures for registration, their duties, the nature of services they can provide, and the offences and penalties for violating the provisions of these laws.

How do these Acts fail queer people?

Most queer people cannot conceive children like their heterosexual counterparts, and do require medical intervention if they wish to have children of their own. Legislators have conveniently invisibilized the members of the LGBTQIA+ community, leaving them out of the ambit of the Acts. These seem to have been drafted in an era where queer identity was forced to hide under a rock!

“As same-sex marriages are yet to be recognized by legislation, these acts clearly discriminate between a heterosexual couple and a same-sex couple,” says Athul Vadakkedom, a final year law student from Delhi University.

“The definition of ‘women’ creates all the more confusion and is in need of further clarification. The bill is not clear whether trans men who choose to give birth, or whether nonbinary, gender fluid and agender people, if they are assigned female at birth (AFAB), can fulfil the criteria of ‘woman’ under these Acts. It is pertinent to note that no provision has been made for transgender women either.”

When The Citizen spoke to Dr Sunrit Majumder, a resident doctor at the Burdwan Medical College he pointed out, “A number of trans individuals freeze their sperm and eggs in fertility banks before commencing hormonal therapy, since it is often associated with an increased risk of reduced fertility. These laws unsurprisingly make no mention as to whether trans individuals will have access to these services.

“The implications of this are glaring - if trans women wish to use their cryopreserved sperm to conceive in the future, how do they do so? Will trans men who have undergone hysterectomy and/or hormonal therapy be able to opt for gestational surrogacy, if they want to?”

Queer people in India are often estranged from their own families because of social stigma. They cannot marry due to the heteronormative marriage laws that despite being challenged in court still persist. On top of that, by criminalising access to medical services which aid in birthing opportunities for queer folks, a fundamental human right, the government has yet again socially excluded them.

This social exclusion is detrimental to queer people’s health.

“An individual from the sexual minority had once pointed out during their therapy session for a depressive episode, how important was acknowledgement and acceptance simply because it has always been denied to them,” recounts Dr Nabagata Das, consultant psychiatrist at AIIMS. “These two acts utterly lack inclusiveness, and definitely is a step back from the progressive trajectory that was expected post decriminalisation of Section 377 of the IPC.”

Another expert remarked how marriage-focused the new laws are.

“Why are these laws so marriage-focused? Marriage can’t be a stipulation for wanting children,” said Dr Tanaya Narendra, an embryologist at Oxford University, who went on to question some of the technicalities created by these laws. “Sometimes infertility is unexplained - what if all my biological parameters are fine and I can’t reasonably prove that I am infertile, how will I procure an eligibility certificate?”

On how these laws will affect the queer community she expressed her concern. “I understand regulation is important, but the blanket measures of these Acts will set the stage for a thriving black market. As more queer people come out of the closet and seek alternative reproductive possibilities, the non-inclusive laws will act as a block, and push them down this black market making them more vulnerable to exploitation.”

It is also pointed out that unlike commercial surrogacy, often expensive ART procedures remain unregulated. According to Palash Shakya, a student at TISS Mumbai, “While the government aspires to control the commercial nature of the surrogacy industry, they have not regulated the price for ART procedures. The high costs that are presently associated with ART services already make it inaccessible to a large population of our nation, especially the queer community.”

And in a familiar criticism, the lack of deliberation in drafting these bills.

“The Acts widely lacked deliberation from concerned stakeholders during their formulation. Stemming from irresponsible drafting, this is a knee-jerk response to the exploitation element in surrogacy. The government opted for a blanket ban and parental approach to ease their responsibility and need to soothe the moral conscience of the populace. The lens of patriarchy and heteronormativity in law-making is problematic,” says legal and policy specialist Bhawna Agarwal.

Both the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act were referred to the Parliamentary Standing Committee on Health and Family Welfare, which released its report recording submissions from different ministries, lawyers, rights activists, journalists, the medical fraternity, commissioning parents, and surrogate mothers. It said the provisions of these Acts are “not in consonance with the present day modern social milieu that we live in and which is ‘too narrow’ in its understanding”.

As Agarwal noted, “The sad irony of the statement by the Committee, which lacked queer representation, is that while they recommended extension of surrogacy to live-in couples and widowed or divorced women, the queer community was overlooked.”

Are these laws even constitutional?

By restricting access to the queer community, these laws seem to violate quite a few fundamental rights guaranteed by the Constitution. These include Article 14 (equality before law), Article 15 (prohibition of discrimination), and Article 21 (right to life and personal liberty).

The queer community will be forced to take it upon their shoulders to now challenge the constitutional validity of these laws before a court of law. Both the Supreme Court and the High Courts of the respective states have the constitutional authority (under Articles 32 and 226 respectively) to strike down provisions of an Act deemed unconstitutional.

Once challenged, it will be up to the judiciary to decide whether these legislations will stand the test of the Constitution of India.