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By Shaurya Mahajan & Pihu Jain
I. Introduction
The recent marriage equality verdict by the Supreme Court once again brings to light the issue of surrogacy rights to light. While Justice DY Chandrachud in his minority opinion recognised a “civil union” and extended surrogacy rights to LGBTQ couples, Justice Ravindra Bhatt in the majority opinion disagreed and upheld the exclusion of LGBTQ couples. This provides the spark to examine the current state of surrogacy rights in the country and highlight the need for reform. Surrogacy is a legal arrangement though which a woman agrees to deliver a child on behalf of an intending couple and then hands over the child to them. In India, these rights are available only to heterosexual, married couples who needs to produce a certificate of eligibility.
On January 25th, 2022, the Surrogacy (Regulation) Act 2021 was enacted. The amended Act exclusively permits charitable surrogacy, preventing those with financial means from “abusing” and “taking advantage” of the surrogacy option. But it has largely overlooked a significant portion of the society: the LGBTQA community and live-in couples.
The Surrogacy (Regulation) Act 2021, which prohibits commercial surrogacy, raises questions about its inclusivity across various societal strata. While our society is evolving to be more accepting, this legislation falls short in addressing the rights of the LGBTQIA+ community and live-in couples. The Act’s failure to explicitly consider their surrogacy rights perpetuates this inequality despite the Supreme Court’s recognition of live-in relationships and LGBTQ relationships. It is imperative that our laws reflect the evolving social landscape and promote inclusivity for all.
In this post, we critically explore the current state of surrogacy rights, shedding light on their glaring lack of inclusivity. While surrogacy has undoubtedly made significant strides in recent years, it remains tethered to a legal framework that often falls short of reflecting the diverse spectrum of modern families. Viewing surrogacy through a narrow lens is no longer sufficient as a one-size-fits-all solution. Instead, we must acknowledge that families come in myriad forms today, embracing various orientations, identities, and backgrounds.
II. Live-in relationship and Surrogacy
Live-in relationships have always been considered a taboo in India. There is no proper arrangement of surrogacy laws for live-in couples and the present act fails to include them within its ambit. While the Supreme Court has upheld their legal status, and even the government has supported this stance by including it within the ambit of the MTP Act, it becomes necessary to explore the reasoning behind their exclusion under Surrogacy Act.
A. Current Status
Live-in partnerships are not explicitly regulated or acknowledged as legal marriage in India. Even though live-in partners have various rights, including the right to cohabitate, maintenance and support, and, in some circumstances, the ability to inherit property, they still face stigma in society.
The Supreme Court of India has acknowledged the legitimacy of live-in partnerships in S. Khushboo v. Kanniammal, and held that a live-in relationship is covered and safeguarded by Article 21 (right to life). Further, according to the Allahabad High Court’s judgement in the Payal Sharma v. Superintendent Nari Niketan case, “a man and a woman, even without getting married, can live together if they choose”.
Surrogacy is a process supported by a legal contract through which a woman carries and delivers a child for a couple. The new surrogacy rights restrict surrogacy to a certain section of the population without any valid justification for the restriction. Following the definition set in section 2(h), the Act permits only married couples with at least five years of marriage who cannot conceive naturally, completely ignoring the rights of live-in partners.
B. Government’s contradictory stance
The government’s justification comes from a fundamentally conservative and patriarchal lens and goes against the fundamental rights of the people. The courts have decriminalised live-in relationships, but the Government still overlooks their surrogacy rights. According to the Government, this would lead to ‘misuse‘ of surrogacy rights. This traditionalist approach goes against Indian culture and breaches India’s human rights obligation.
The government’s statements on the subject also reveal an implicit contradiction in its policy outlook. While in a much-appreciated step live in couples have been included in the MTP Act, the same couples are denied surrogacy rights under the present act. Even in the Medical Termination of Pregnancy Amendment Act of 2021, the phrase “husband” has been replaced with “partner”. This made the law more inclusive to live-in couples. The Supreme Court ruled that a woman’s marital status cannot be used as justification to deny her the right to end an undesired pregnancy. All women have a right to safe and legal abortions, as per the court.
Therefore, it is pejorative that while Indian courts approve of live-in relationships the government instead of debating the merits of a legal question, prefers to wonder if doing so will “promote” the idea of “promiscuity,” in unmarried women.
III. Surrogacy Act and LGBTQIA Rights
Recently, a Public Interest Litigation has been ongoing before the Supreme Court challenging the constitutionality of the Surrogacy Act, 2021, and it brings into question the aspect of LGBTQ rights within the framework of the Act.
A bare reading of the Act makes it clear that it is discriminatory against members of the LGBTQ community. Section 2(h) restricts the definition to – “legally married Indian man and woman above the age of 21 years and 18 years respectively”, and as read along with section 2(r) of the Act, it disallows LGBTQ people from availing the benefit of surrogacy.
A. The Marriage Equality Case
Making it even simpler, in the recent marriage equality hearing in the Supreme Court, the Government accepted this position in its submission before the court. The reasoning presented for this exclusion is to avoid “misuse” and provide children with a “complete family.” The Union’s Department of Health Research and the Indian Council of Medical Research filed a 131-page affidavit in the court stating that the child’s welfare “trumps any notions of equality amongst prospective/intending parents/couples.” “The Act intends to provide a complete family to the child born out of surrogacy,” the Government reiterated.
This follows the Government’s submission before the honourable Supreme Court in the marriage equality hearing, equating LGBTQ marriage with incest. It plays into a stereotyped view of a family, not only in a heteronormative household dynamic but also presuming a lack of autonomy on the part of women. Indian law, societal standards, and religious doctrine declare that both parents must be from two different sexes for the holistic development of a child.
The government’s stance in this regard stands in violation of several basic constitutional provisions, the spirit of the Supreme Court’s judgement in the Navtej Singh Johar v. Union Of India case and several international human rights law documents India has ratified. case and several international human rights law documents India has ratified.
B. Right to procreate
The present distinction is violative of the Right to Procreate and Right to make reproductive choices of LGBTQ couples. The Right to Procreate and make reproductive choices falls within Article 21 of the Constitution and, as such, are Fundamental Rights under the Constitution. It has been reaffirmed as such by the Andhra Pradesh High Court in the case of K. Parthasarthi v. Government of Andhra Pradesh which held that the right to procreate falls within the ‘Right to privacy’ as held by the Supreme Court in the Puttaswamy v. Union of India case and Suchitra Srivastava v. Chandigarh Administration case.
It further invalidates the Supreme Court’s judgement in the Baby Manji Yamada v. Union Of India case, which had allowed LGBTQ couples to avail themselves of the benefit of surrogacy, thereby granting heterosexual couples the exclusive benefit of surrogacy on an arbitrary and unjustifiable basis.
C. Unconstitutionality
The exclusion of LGBTQ people is ultra-wires to the Constitution, specifically Articles 14, 15, 19 and 21. This reasoning has been accepted and was applied by the Supreme Court in the landmark cases of National Legal Services Authority v. Union of India and Navtej Singh Johar v. Union of India. The Supreme Court, through these judgements, secured the LGBTQ community’s recognition under the law and the protection of fundamental rights. Still, it is sad that the same has not been extended to surrogacy laws.
The Act violates the fundamental Rights enshrined in the Constitution of people belonging to the LGBTQ community, specifically the Right to Equality and the Right to Life. Sections 2(1)(h), 2(1)(r), 2(1)(s), 2(1)(zd), and 2(1)(zg) of the act by providing a restrictive definition to terms used in the Act, discriminate on the basis of sexual orientation and marital status. This argument can be further extended because sexual activity isn’t limited to satiating carnal desires. Having children through a sexual union is also an essential aspect of the Right to Life.
D. International law provisions
The Act’s provisions also violate various international human rights law instruments India has accepted and, under Article 51 of the Constitution, has an obligation to implement. The exclusion in the Surrogacy Act is in clear violation of Article 16 of the UDHR, which protects the right of an individual to marry and start a family, Article 17 of the ICCPR, which protects individuals’ privacy from state interference, and Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which recognizes the universal right to parenthood.
IV. Conclusion
The exclusion of LGBTQ people and people in live-in relationships is thus clearly unconstitutional and even goes against the spirit of the Act itself. The distinction made in this regard is wholly arbitrary and unreasonable and violates Article 14 of the Constitution. As per the reasoning explained, there is no justifiable distinction between LGBT people and people in live-in relationships and those covered under the act. Further there is no basis for making the distinction itself. The elements of Rationale Nexus and Intelligible Differentia required for reasonable classification following the Supreme Court judgement in the Re Special Courts Bill for the distinction to be valid are clearly not met in this case.
It is a regrettable situation that even though the Supreme Court has decriminalised homosexuality and extended the protection of the fundamental rights to the LGBTQ people, its effects are yet to materialise. It is imperative that the Supreme Court holds the challenged sections of the Act to be ultra-wires to the Constitution and, in the exercise of the Judicial Review as provided under Article 13 of the Constitution, amends the Act to include LGBTQ people in its ambit and declared the part in violation to be void.
The same rationale extends to live-in couples. As explained above, live–in relationships have been recognised by the Supreme Court, and the present status as mandated by the Act infringes on the recognition conferred by the Supreme Court. It also presents an ironic situation on the policy front, where people in live-in relationships are covered under the MTP Act but not under the surrogacy Act, reinforcing the lack of reasonableness in the logic given by the Government.
It is necessary to grant the status and privilege of bearing children not just to heterosexual couples but also to LGBTQ and live-in couples. The right to parenthood or motherhood is a fundamental right under Article 21 of the Constitution, as affirmed by the Supreme Court in Hema Vijay Menon v. State of Maharashtra, and further, the right to privacy also flows from Article 21, as decided in Kharak Singh v. State of UP, provides the basis for the unconstitutionality of the Act. The right to motherhood is also enshrined in various international instruments India has ratified, including the UDHR and ICCPR.
It is high time that the Supreme Court steps in to safeguard the rights of the people, and it’s only then that the Right to Parenthood or the Right to find a family for all people can be secured.
Shaurya Mahajan & Pihu Jain are first-year law students at Jindal Global Law School.
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