“No surrogacy” laws for same -sex couples

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Two women are holding hands against the light through the LGTBI flag.

The Indian government has recently stated that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws. The government’s Department of Health Research and Indian Council of Medical Research issued an affidavit stating that the welfare of the child is more important than notions of equality amongst prospective parents or couples. The government argued that it is difficult to ensure a better future for a child born through surrogacy if the parents are not legally married heterosexual couples. The government’s affidavit also suggested that including live-in and same-sex couples would lead to misuse of the laws.

This response from the government comes at a time when same-sex couples are fighting for their right to marry and raise a family as equal parents. Chief Justice of India D.Y. Chandrachud, heading the Constitution Bench, has previously remarked that same-sex couples could offer as stable and loving a home as heterosexual married parents.

The government’s perspective is not in line with several Supreme Court judgments that recognise long-term live-in relationships as equivalent to marriage. The response from the Centre is based on a petition filed by an IVF specialist, Arun Muthuvel, challenging provisions of the Surrogacy Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 as discriminatory and violative of women’s reproductive rights and an impediment to the right to privacy.

However, the government argued that the Acts make it clear that only legally married heterosexual couples can opt for surrogacy or assisted reproduction. The government also stated that even single men or women are not allowed to avail surrogacy, as the Act intends to provide a complete family to the child born out of surrogacy.

Overall, the government’s stance is controversial and may spark further debate regarding same-sex couples’ and live-in partners’ rights to have children through surrogacy and assisted reproduction.

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