The government has stated before the Supreme Court that same-sex couples and live-in partners are not covered in surrogacy and assisted reproduction regulations in order to minimise “misuse” and give children with a “complete family.”
The government’s position
- Surrogacy and assisted reproduction regulations exclude same-sex couples and live-in partners to prevent’misuse.’
- The child’s welfare should take precedence above any conceptions of equality among potential parents or spouses.
- Despite the decriminalisation of their partnerships, no special protections or additional privileges have been granted to same-sex couples and live-in partners.
Why in news?
- The government’s viewpoint contradicts many Supreme Court decisions holding that long-term live-in relationships “presume” marriage.
- Live-in partners are not legally bound, and the child produced through surrogacy cannot be guaranteed to be safe.
Support from the judiciary
- Same-sex couples are battling for the ability to marry and have children as equals.
- The Chief Justice of the Supreme Court has stated that same-sex couples may provide as stable and loving a home for their children as heterosexual married parents, if not better.
Characteristics of the Surrogacy (Regulation) Act of 2021
- Surrogacy is defined as follows: Surrogacy is defined as a practise in which a woman gives birth to a child for an intending couple with the aim of handing the kid over to the intending couple after the birth.
- Surrogacy regulation: It outlaws commercial surrogacy but allows altruistic surrogacy, in which the surrogate mother receives no monetary compensation other than medical bills and insurance.
- Surrogacy is legal for the following reasons: Surrogacy is permissible when: (i) intended couples with proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution, or other forms of exploitation; and (v) for any condition or disease specified by regulations.
- Criteria for eligibility: The prospective couple must receive a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the competent body, such as the District Medical Board.
Criteria for surrogate mother eligibility:
- The surrogate mother must be a close relative of the prospective couple in order to receive a certificate of eligibility from the proper government.
- A married woman with her own child; 25 to 35 years old; a surrogate only once in her life; and
- Have a document proving your physical and psychological readiness for surrogacy.
- Furthermore, the surrogate mother is unable to supply her own gametes for surrogacy.
The Petition’s Basis: The Right to Reproductive Independence
- The personal decision of a single individual to have a baby through surrogacy, i.e., the right to reproductive autonomy, is a component of the right to privacy provided by Article 21 of the Constitution.
- As a result, no citizen or person influencing a decision to bear or beget a child through surrogacy can be denied the right to privacy.
Other Concerns Regarding Surrogacy Law
- Medical problem requirement: Surrogacy services are only available to married women who are unable to bear children owing to medical issues.
- Widow/Divorced: Otherwise, women must be between the ages of 35 and 45 and widowed or divorced in order to use surrogacy services.
- Women can only offer surrogacy if they are between the ages of 25 and 35, married, and have at least one biological child.
- The laws also demand that a surrogate be genetically linked to the couple that intends to conceive a child through this means.
Source: https://indianexpress.com/article/explained/what-laws-regulate-surrogacy-in-india-nayanthara-vignesh-8202717/