The government in the Supreme Court has said that same sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.
The Union’s Department of Health Research and the Indian Council of Medical Research, in a 131-page affidavit, said the welfare of the child “trumps any notions of equality amongst prospective/intending parents/couples”.
The government said though “the Supreme Court has decriminalised same sex relations and live-in relations, neither any special provisions have been introduced with respect to same sex/live-in couples nor have they been granted any additional rights”.
The government said the inclusion of live-in and same sex couples within the ambit of the Surrogacy Act would lead to “misuse”.
“It would be difficult to ensure a better future for the child born through surrogacy,” the government cautioned.
The affidavit comes at a time when same sex couples are fighting for their right to marry and raise a family as equal parents.
In a recent hearing of the same sex marriage case, Chief Justice of India D.Y. Chandrachud, heading the Constitution Bench, had remarked that same sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.
The government’s affidavit struck a jarring note, saying “the only kind of couples that are eligible to avail benefits of surrogacy or assisted reproduction are heterosexual married couples, to the exclusion of live-in couples or any other relationships and that too with strong regulations with respect to age, consent, etc. There are clear exclusions of even some married heterosexual couples...”. The affidavit said these restrictions ensured that the welfare of the child was “paramount”.
Again, the government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
The response from the Centre is based on a petition filed by Chennai-based IVF specialist Arun Muthuvel, represented by advocate Mohini Priya, challenging several provisions of the Surrogacy Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 as discriminatory and violative of the reproductive rights of women and an impediment to the right to privacy.
But the government argued that both Acts made it clear that couples opting for surrogacy or assisted reproduction should be “legally married biological man and woman”.
“Live-in partners are not bound by law and safety of the child born through surrogacy,” the government said.
It said even single men or women were not allowed to avail surrogacy.
“The Act intends to provide a complete family to the child born out of surrogacy,” the government insisted.