The govt 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’.

Government’s stance

• Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
• The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
• No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

Why in news?

• The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
• Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

Judiciary in support

• Same-sex couples are fighting for their right to marry and raise a family as equal parents.
• CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

Distinct features of the Surrogacy (Regulation) Act, 2021

• Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

1. A close relative of the intending couple;
2. A married woman having a child of her own;
3. 25 to 35 years old;
4. A surrogate only once in her lifetime; and
5. Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

Basis of the Petition: Right to Reproductive Autonomy

• The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
• Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Other issues with Surrogacy Law

• Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
• Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
• Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

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