Right Of Foreign Homosexuals To Have A Surrrogate Child In India: An Analysis

A recent news piece that has caught everyone’s eye is that an Israeli homosexual couple has got a surrogate child from India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind.

Doctor Allahabadi, who made the couple’s dream of having a child come true, confirmed that almost 16 homosexual couples of different nationalities (such as Swedish, French etc.) have approached him for the surrogacy. Reasons for choosing India as a destination are also quite obvious - less paper work and also, cost of whole treatment is much lesser than other countries.

In the light of the aforesaid, it is pertinent to note that under Section 377 of Indian Penal Code, 1860 (“IPC”), “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”

Since as per IPC homosexuality is treated as an act that entails criminal liability in India, how can a foreign homosexual couple be legally allowed to get a surrogate child? It is often alleged that Section 377 of IPC violates the fundamental rights of homosexuals in India. Despite the existence of literature drawn from Hindu, Buddhist, Muslim as well as modern fiction to testify the presence of same-sex affinity in various forms, homosexuality is still considered a taboo by both the civil society and the government in India.

The Assisted Reproductive Technology (Regulation) Bill, 2008
The Indian Council of Medical Research (ICMR) has enacted the Assisted Reproductive Technology (Regulation) Bill, 2008 (“Bill”), which, in all likelihood, will become a law in the parliament.

However, there are certain confusing definitions in the bill which need further explanation and clarifications. Section 32(1) of the Bill, which is the enabling provision, states: “That subject to the provisions of this Act and the rules and regulations made there under, Assisted Reproductive Technology (“ART”) shall be available to all persons including single persons, married couples and unmarried couples”.

Therefore, it becomes pertinent to understand that how a couple is defined here. Under Section 2(e) of the Bill, a couple means: “The persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in”.

This definition is inclusive in nature and covers all kinds of couples, whether they are homosexuals or not. Furthermore, the definition does not prevent the citizens of a country (where homosexual marriage is legal), from having a surrogate child. So, if section 377 of IPC is amended so as to be in consonance with the scheme of the Bill (as and when it is passed by both the houses to give it a legal effect), there will be no impediment in including same-sex couples within the definition of ‘couple’ as defined under Section 2(e) of the Bill. The effect of the definition appears to do away with the legal limitation imposed by Section 377 of IPC, and is not just a mere co-incidence of legal drafting.

As we ponder upon some other definitions in the Bill, an “unmarried couple” is defined under Section 2(w) to mean: “A man and a woman, both of marriageable age, living together with mutual consent but without getting married.”

So when these two definitions are read simultaneously, it clearly delineates that for an unmarried couple to get a surrogate child, they have to be heterosexual; but on the other hand, no such condition is applicable to married couples i.e. they might be homosexual or heterosexual.

This leaves us in sheer confusion as Section 32(1) is not restricted, but extended to include 'single persons', 'married couples' and 'unmarried couples' as well. There is perhaps a window left open for a foreign married homosexual couple who, according to the two definitions under the Bill, are a ‘couple’ having a valid married status under their jurisdiction. The non-exhaustive language used herein should allow the courts to fill in the gap.

Discrimination
Since a homosexual relationship or marriage is not legal in India, this Bill by ICMR seems discriminatory in nature towards Indian homosexuals as homosexuality is legally prohibited in the country. On the other hand, homosexuals from the countries (where homosexual marriages are legal) can freely come to India and get a surrogate child. Moreover, an Indian homosexual couple cannot have a surrogate child; an Indian homosexual person can do so only by invoking his status as a ‘single person’ under the Bill, and not as a homosexual. Marital status of a homosexual individual, therefore, does not matter either for having a surrogate child.

In addition, Section 34 (10) of the Bill states that “The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents / parent of the baby.” This implies that the child belongs to them (him) who contribute(s) to the genetic make-up of the child (excludes anonymous donors). Only one of the two partners in a homosexual couple can make such a contribution; under Section 33(3) of the Bill states that: “A donor shall relinquish all parental rights over the child which may be conceived from his or her gamete.” For this purpose and therefore, the child will bear only the name of the contributing partner of the homosexual couple.

The question now is: ‘is marital status going to be a restrictive factor preventing Indian unmarried homosexual couples from having a surrogate child?’ In the light of above stated, the answer for this question would certainly be no, but still there is a discriminating factor against Indian homosexual couples and in favor of foreign homosexual couples (who can legally get a surrogate child as per ICMR).

Conclusion
This kind of problem can be conveniently solved by passing the bill only when the status of the Indian homosexual couples is brought at par with the foreign homosexual couples; either legalize homosexual relationships/ marriages in India or else, put such restrictions on a foreign homosexual married couple as are faced by Indian homosexuals (where the issue of getting a surrogate child is concerned).

The  author can be reached at: jyotsnasharma@legalserviceindia.com