When I intended to write about the Assisted Reproductive Technology Bill, I didn’t want to reduce my reading to an objective classification of its triumphs and travails. As a student of multidisciplinary studies and as a firm believer in the philosophy of understanding law as a functional unit of diverse humanistic disciplines, I focused my attention upon the analysis of the provisions of the Billfrom a perspective that unconsciously plagues its relevance – Gender.
The aforementioned pending legislation prohibits homosexuals from availing the benefit of surrogacy. In addition to this, unmarried heterosexual individuals, individuals in live-in relationships, foreigners and married couple with an already living biological child are exempted from having a child through the process of surrogacy.
It is understandable that the legislative intent is to regulate the surrogacy process in India, a country which is quite infamous as a surrogacy haven. The significant focus has been put on the ban on commercial surrogacy and setting up a system that provides maximum protection to the surrogate and legal recognition to the baby. The problem, however, begins to creep in when certain classes of people get explicitly prohibited to avail the option of surrogacy without any reasonable justification for the same. The psych that goes behind such exclusionary provision is based on flawed understanding of dynamics associated with modern kinship systems and parental psychology. The same is evidently reflective in the purposeful exclusion of unmarried individuals, married couples with biological kids, and most disturbingly – homosexuals.
- Legal Affirmation of Homophobic Stigmatization
The only plausible reason that becomes evident from the exclusion of homosexual couples from the Bill is the belief of the state in various prejudices associated with the community. Such a belief is dangerous for it goes on to use state machinery and legislative process to legitimize the authenticity of such prejudices. Conformists often use law as the last word on the virtues or vices of a being or an activity. They defend almost all of their arguments by seeking validation from the intent of the state’s action, an institution that has long been perceived as one enshrined with higher intellect, and shush all their oppositions by proclaiming the term ‘law of the land’. This term further snowballs the problem as the plain reading of it would imply the application of this law on every person who belongs to this land. So those who disagree with this law are either forced to follow it or are not considered as part of the ‘land’. This is a borderline issue that pulls or pushes democracy from becoming a majoritarian oligarchy. Unfortunately, in the case of rights of homosexual community, there hasn’t been any uniform and pan-India survey in recent times to affirm the majoritarian claim of anti-homosexual lobby.
There exist many prejudices and stereotypes against homosexual couples especially with reference to their association with children. One of these prejudices that play a major role in this draft legislation is the one that says homosexual parenting is dangerous. To understand this prejudice in a detailed manner we need to look at certain examples from US, for in India, the plight of homosexuals and the idea of criminality associated with it doesn’t leave much room for homosexual people to embrace their sexuality let alone ask for equal rights. US Supreme Court in the case of Boys Scouts of America v. Dale upheld the decision of the Boy Scouts of America to disallow a gay man to be a scoutmaster. While the court reasoned its judgment by saying that the organization must be allowed to privately and publicly advocate its viewpoint, it is not difficult to infer that it also passed a judgment on the issue of whether gay men should have contact with children.
Another dimension of this prejudice is a belief that says that upbringing of a child by homosexual parent would lead to his/her social condemnation. The same was declared by the Supreme Court of Virginia in Bottoms v. Bottoms where the court neglected the doctrine of parental autonomy and gave the custody of a boy to his grandmother instead of his living and earning mother just because the latter was an out lesbian. The court held in its judgment that –
“Living daily under conditions stemming from active lesbianism practiced in the home may impose a burden upon a child by reason of the social condemnation attached to such an arrangement, which will inevitably affect the child’s relationship with its peers and with community at large”.
This judgment is not only condemnable but also unconstitutional for it tends to restrict a person’s fundamental right on the basis of a social prejudice that has no legal, factual or scientific validation. However, the most serious apprehension associated with this judgment is the fact that homophobic tendencies in judiciary can manifest itself so strongly that judges may tend to forget their professional ethics and expected fairness in order to use their authority to legitimize their belief and convert socially scattered homophobic sentiments into institutional and stratified homophobia under the name of ‘justice’.
This idea goes further to demonize homosexuals and see them as an identity isolated from their own identity. A sexual preference is forced to engulf all other statuses, preferences, and roles and juxtaposes every relationship as a consequence or a construction of underlying homosexual needs. So a gay man or lesbian woman was seen as ‘just a man’ and ‘just a woman’ until they came forward and opened up about their sexual preferences. Suddenly, a child’s favourite uncle becomes his most dangerous predator. This leads us to the next prejudice that sees homosexuals as sexually compulsive humans. All their notions of humanity, faith, emotions and choice are camouflaged by this overriding identity because of this perceived notion that homosexuality restricts ones choice of getting sex with the desired person and that makes them desperate for anyone who is from the same sex. This notion not only grossly trivializes the concept of romance in queer life but also wrongly interprets identity. If a heterosexual man’s life is not primarily guided by his sexual identity and it doesn’t stop or restrict him for adorning multiple identities, why wouldn’t the same principle apply to a homosexual man?
In addition to this, the societal fear of a homosexual’s child becoming a homosexual is also quite unfounded. Firstly, the problem comes with the ‘fear’ itself. If, as a homosexual, I’m fighting for my rights, I would be completely okay with my child developing the same sexual preference as mine. Secondly, there has been plethora of instances where homosexual identities are adorned by people who are born in heterosexual families and vice versa. Therefore, proto-queer theorists such as Foucault might argue the significance of socialization in the development of sexual preferences, but even they won’t be able to ignore the importance of self actualization and biological reasons behind one’s sexual preference.
The discrimination displayed in this particular form has far reaching consequences to the future of homosexual identity assertion in India. We already have a section in the penal code that criminalises anal penetration or sodomy; however that applies to both heterosexual and homosexual couples. Now, a specific exclusion of homosexual couples from a civil provision that primarily deals with ones relationship with the institution of family and kinship, has further isolated the homosexual community from mainstream society. This form of exclusion is dangerous for it is institutionally established and can lead to systematic discrimination. The homophobic army would now validate their prejudices on the premise of higher intellect of the state and would vindicate their claims on homosexuality by quoting such discriminatory laws as example.
It’s evident that exclusion of homosexuals from the Act that regulates surrogacy is a way by which the state has sought to further isolate the homosexual community from normalization process with the mainstream society. While doing so, the state has sought to institutionally validate the social prejudices that exist against homosexual couples in the society. In addition to this, the state has also failed to acknowledge the sub-culture that proliferates within queer communities and the spectrum of identities, statuses and roles that they carry in their social milieu.
On these accounts, I believe that this particular exclusion is unconstitutional as it violates Article 14 of the Constitution. This provision fails to meet the dual test of fairness as the state has differentiated the homosexual couples from heterosexual couples on grounds that are not reasonable or natural but are based on the prejudices and stigma that is attached to the homosexual community by certain section of people in the society. Also, there doesn’t seem to be an objective nexus between the remedy that the Bill seeks to secure, which is a shift from commercial surrogacy to altruistic one, and the exclusion of homosexuals from the Bill. Therefore, government should reconsider the provision in an inclusive manner and in light of contemporary developments on societal dynamics instead of disempowering a community on the basis of baseless prejudices. After all, we belong to a welfare state.
 Assisted Reproductive Technology Bill, 2014
 120 S.Ct. 2449 (2000)
 457 S.E. 2d at 108
 Section 377 of the Indian Penal Code