Gay couples and surrogacy

Advice - Rights and Laws, Dec '14
By Kaushik Gupta

Reader queries

We are a gay couple and want to have a child through surrogacy? Is this possible? What are the legal implications?

Anonymous, Kolkata

The first issue that needs to be addressed here is that Indian law, unfortunately, does not yet recognize the concept of a ‘gay couple’. Marriage can take place only between a male and a female. Two men can choose to identify as a gay couple but the law only understands and recognizes a heterosexual married couple.

Therefore, here the query converts to whether a single male person can have a child through surrogacy. There is no specific law governing the issue of surrogacy in India. A bill was prepared in 2010 but it has not yet been converted into law. There are, however, the National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India. The sample consent form in these guidelines pre-supposes the existence of a ‘husband’ and a ‘wife’ and mandates the requirement of the signature of both of them along with that of the doctor.

The authorities have presumed while drafting the guidelines that only a heterosexual couple will apply for surrogacy to assisted reproductive technology clinics. Chapter 2 of the guidelines speaks of the process of patient selection. Here too is the mention of husband and wife. In the event a single person, who is otherwise capable of bringing up a child, applies for surrogacy and is refused, the matter can be taken to court for a decision on the issue. The paramount consideration will be the welfare of the child, when born.

In the case of Baby Manji Yamada Versus Union of India & Anr [(2008) 13 Supreme Court Cases, page 518], it was held by the apex court that commercial surrogacy is permitted in India. The 228th Law Commission of India Report has emphasized the importance of enacting a law on surrogacy. But as long as there is no specific law, it is open to the courts to decide the matter on a case-to-case basis or lay down a guideline till a law is enacted.

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.