I. Surrogacy Law in India
For a long time, surrogacy was unregulated in India. This had both good and bad consequences. Good because, many couples, straight or queer, who could not have children biologically, could engage the services of a surrogate. Indeed, this made India one of the most favoured surrogacy destinations in the world. Equally, the lack of regulation meant that the surrogate was exposed to exploitation—physical, mental, and financial. To remedy this situation, the Indian State had been grappling with setting up a regulatory regime. After several failed or stalled attempts to do so, the Surrogacy Regulation Act was finally passed in 2021 and has been operational since July 2022. This was followed by the Surrogacy Regulation Rules which provided the particulars on how a couple could go about surrogacy. Can Indian queer persons opt for surrogacy?
II. Whom Does the Law Exclude?
The new regime severely restricts access to surrogacy. The law excludes single men, women who have never been married, the great majority of LGBTQ+ couples, and any unmarried couples.
Only three kinds of subjects are contemplated as deserving access to surrogacy within the Act. 1. Divorced Women, 2. Widowed women; and 3. Married Indian couples.
To access surrogacy they must meet certain conditions, called ‘medical indications’ by the Act. One such indicator is the absence or abnormality of a uterus in the woman. So, for example, if the uterus had to be removed for a medical reason or if there were some problems like a thin endometrium, a woman could opt for surrogacy.
III. Amendment to Law Prohibits Use of Donor Cells
The petitioner in this case did not have a uterus and ovaries, and as a result could not produce her own ova or eggs. A few months after the couple had started the surrogacy process, a new amendment to the surrogacy Rules[1] specifically outlawed the usage of donor sex cells—sperm or ova, for surrogacy. Up until this change, the usage of donor sex cells was permitted. The question in this case was whether this couple could still use a donor ovum since the wife was incapable of producing her own.
As we can see, this amendment would cause some obvious problems for this couple. The woman cannot produce the sex cells needed for fertilisation of the sperm and the law has prohibited her from accessing donor cells. Even though she otherwise meets all the eligibility criteria for surrogacy, she faces a legal checkmate because the rule has changed.
What’s more, this change added an implied internal contradiction to the law because one part of the Rules allowed a woman to opt for surrogacy in case of a missing uterus (Rule 14), whereas now a form appended to the Rules took that option away from her by requiring both sex cells to come from the couple (Form 2, Rule 7). A form cannot change what is provided by a Rule—that is beyond the scope of delegated legislation. Therefore, the court had no hesitation in striking down the amendment and permitting the couple to use donor ova in this case. Following this judgment, the form was also changed, and now as long as one partner produces their own sex cells, donor cells can be used.[2]
This case can have radical applications. If a couple is married or can marry, and at least one partner can produce sex cells, they can avail of surrogacy. Let us see what it means for the queer community.
IV. Can Transgender Couples Avail of Surrogacy?
The marriage equality case clarified that transgender heterosexual persons can legally marry (Supriyo 2023), and this right was available to Hindu couples falling within this category even earlier Arun Kumar (2018). Once married, they can avail of surrogacy, and indeed technically they were never barred under the Act.
V. Can Intersex Couples Avail of Surrogacy?
Yes, technically they always could, but one of the immediate consequences of this case was to clarify that intersex couples can indeed avail of surrogacy so long as they are married. However, either the egg or the sperm must be from the intending couple.
VI. What About Divorced and Widowed Women with Intersex Conditions?
Divorced and widowed women are in a graver position because the form 2 of Rule 7 still requires that they produce their own sex cells. Therefore, if a divorced or widowed woman has an intersex condition such that she cannot produce her own eggs, she will not be allowed to proceed with surrogacy. In this way, the Act continues to under-provide for subjects it itself considers eligible.
VII. What About Single Men and Unmarried Women?
Single men and unmarried women, including lesbian, bisexual, and gay persons within these categories remain ineligible for surrogacy. The Act is currently under challenge for that reason. The law places an emphasis on marriage and links parenthood with it. This is reminiscent of the prejudice faced by single mothers as unfit parents. Curiously, this emphasis on marriage does not carry through to other parenting laws in the country. Some adoption options in India are open to both single men and single women thus providing a route to parenthood for single and/or unmarried queer persons. The irony is that currently one set of laws considers large swathes of the queer community unfit for parenthood while another provides a route for it.
[1] The amendment was brought to Form 2, Rule 7, Clause 1(d) in 2023.
[2] Via the Surrogacy Regulation (Amendment) Rules, 2024.
Discover more from Law and Sexuality
Subscribe to get the latest posts sent to your email.