Recently, the Supreme Court of India, in a unanimous verdict, struck down Article 377 of the Indian Penal Code (IPC) and decriminalised homosexuality. At this historic juncture, I am curious to know what this decision means in the larger context of sexual rights and freedom. Are we ready to talk openly about same-sex families, especially same-sex parenthood? The number of children raised by lesbian and gay parents has continued to increase across the globe as reproductive technologies advance and as the availability of adoption expands. One may argue that this is a premature discussion to have, especially in the Indian context. However, I believe that we cannot avoid this conversation anymore, particularly when ARTs (Assisted Reproductive Technologies) have opened up new reproductive possibilities for single and gay men and women. Thanks to surrogacy, director and producer Karan Johar now has twin babies. And another actor Tusshar Kapoor has a son through donor egg surrogacy. Although these celebrities prefer not to talk openly about their sexuality, they are very vocal about their parenthood through assisted reproduction and surrogacy. These celebrity single fathers have helped to stir up a conversation to remove the stigma associated with infertility and single parenthood, and to queer heteronormative family narratives.
With the new reproductive options, ARTs have also given birth to anxieties regarding local meanings of morality, family, and kinship on the one hand, and discourses of modernity, free market economy, the law, and bioethics on the other. The supporters of the new world of reproductive technology argue that these technologies have enormous subversive potential by allowing these “families of choice” (Weeks 2001) to be created. Unfortunately, when homosexuality is gaining legal recognition in India, there are also attempts to shrink reproductive options for gay and single individuals. I want to specially focus on the new developments of the ART (Assisted Reproductive Technology) Bill which has been drafted to regulate assisted reproduction and to point out who has the right to create families in India with the help of assisted reproduction. After the famous Supreme Court decision of September 2018, legislatively we can say that we are now as a society gradually opening up to the idea of same-sex relationships, but the new draft of ART Bill, on the other hand, shows a strong bend towards traditional heterosexual families. The Surrogacy Regulation Bill, 2016, which was cleared by the Lok Sabha in December 2018, seeks to not only “prohibit commercial surrogacy” but also prevents single people, those from the LGBTQ community and those in a live-in partnership from experiencing parenthood through surrogacy (The Times of India 2018). The Bill promotes altruistic surrogacy only for heterosexual Indian couples married for five years with “proven infertility.” While defending the bill, Sushma Swaraj, the Minister of External Affairs of India said, “We do not recognise homosexual or live-in relationships, that is why they are not allowed to commission babies through surrogacy. It is against our ethos” (Express News Service 2016).
The new celebrity single dads mentioned earlier talk about reproductive choice. After becoming a father of a son, Laksshya, with the help of surrogacy, Tusshar Kapoor said: “I am thrilled to be a father. The paternal instincts in me have been overpowering my heart and mind for some time now. Therefore, I am thrilled beyond words to have Laksshya, now the greatest source of joy in my life. By the greatness of God and the excellent medical team at Jaslok, parenthood is an option for many, who choose to be single parents.” Interestingly, sometimes people use the terms “reproductive technology” and “reproductive choice” interchangeably. Assisted reproductive technologies and medical science create the discourse of “reproductive choice”. Karan announced his great news via Twitter: “I am ecstatic to share with you all the two most wonderful additions to my life, my children and lifelines; Roohi and Yash. I feel enormously blessed to be a parent to these pieces of my heart who were welcomed into this world with the help of the marvels of medical science.” Feminist anthropologist Marilyn Strathern (1992) argues that after the development of reproductive technologies, procreation can now be thought about as a subject of personal preference and choice in a way that was never before conceivable. I am curious to explore how to make sense of the rhetoric of “reproductive choice” under the circumstances when the present government is trying to take away the rights of parenthood from gay and single individuals. Most of the clinics in India have stopped offering surrogacy to gay and single clients in fear of legal repercussions. While the government of India is trying to totally ban commercial surrogacy, these celebrity parents could still have babies with the help of surrogacy. We therefore need to ask who has the “right to choose” and under which social and material conditions these choices are made.
Surrogacy in India, at one point in time, became a billion dollar industry. Initially, the fertility industry grew without any legal framework to regulate or monitor it. With the absence of a legal framework, surrogates, donors, and the intended parents operated in a market without any rights or safeguards. The Indian Council of Medical Research (ICMR) made an effort to suggest guidelines to regulate the fertility industry in 2005. This was non-binding in nature, but most clinics tried to follow the legal guidelines. Later, in 2008, the ICMR started a process to draft a bill to regulate the thriving industry. When we talk about surrogacy, it opens a plethora of discussions specially about the rights of surrogates and the exploitation of these women. Surrogacy in India was also known as “womb for rent industry”, “womb farm”, “baby factory” etc. It is also important to remember that the practice, access, and availability of reproductive technologies are embedded in consumer choice and patriarchal beliefs (Corea 1985), and the rhetoric of choice needs to be evaluated from these perspectives. Practices of ART, as well as the technologies themselves, are part of and often reinforce power relations of capitalism, racialisation, and gender and sexual hierarchies. Most of the media reporting on these celebrities tend to avoid these uneasy topics. The surrogacy industry developed in areas where one needs, side by side, the supply of disposable bodies as well as people with money who can hire these services. While I recognise and understand the government of India’s intention to ban commercial surrogacy to end the exploitation of surrogate women, it is also quite evident that the new ART draft bill intends to define ‘ideal’ Indian families, demarcating who has the right to reproduce. Initially, the ICMR guidelines advocated providing reproductive technology assistance to all individuals, including single men and women and both heterosexual and same-sex couples, and this helped to make India a favoured destination for fertility treatment. But gradually from 2012 there have been attempts to offer surrogacy services only to heterosexual couples (Hyder 2013).
While we moved one step forward towards sexual rights by striking down Article 377 of the Indian Penal Code (IPC) and decriminalising homosexuality, we still have a long way to go in changing and challenging the popular psyche and the political and legal narratives around homosexuality and queer families. The celebrity narratives are providing us new images of families and questioning gender and sexual norms of the traditional heterosexual biological families. But unfortunately, these options are not available to everybody. The options for surrogacy are shrinking; adoption policies for gay and single men and women are also very narrow. Hence there are very few options available for single and gay men and women to have their own babies and to create their “families of choice”. I understand that we are still early in this conversation, but we need to initiate a dialogue about creating options for homosexual and queer families if we are serious in our endeavour to create a truly equal society challenging heteronormativity.
Corea, Gena. 1985. The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs. New York: Harper & Row.
Express News Service. 2016. New Surrogacy Bill Bars Married Couples with Kids, NRIs, Gays, Live-ins, Foreigners.The Indian Express, 25 August. http://indianexpress.com/article/india/india-news-india/surrogacy-bill-sushma-swaraj-married-couples-can-now-opt-homosexuals/
Hindustan Times. 2016. Tusshar, 39, announced on Monday in a statement that he became the father of baby boy Laksshya. Hindustan Times, 28 June. https://www.hindustantimes.com/bollywood/this-is-the-first-photo-of-tusshar-kapoor-s-day-old-son-laksshya/story-M6f2hvLABDdUXW9qVyrqvO.html.
Hindustan Times. 2016. Karan Johar shares another cute picture of Yash and Roohi playing together. Hindustan Times, 13 January. https://www.hindustantimes.com/bollywood/karan-johar-says-another-cute-picture-of-yash-and-roohi-playing-together-see-it-here/story-MCOmgIKlaq4G0STAn6RfZM.html.
Hyder, Nishat. 2013. “BIONEWS—India Limits Surrogacy Visas to Married Couples.”
BioNews, January 21. http://www.bionews.org.uk/page_242618.asp.
Strathern, Marilyn. 1992a. After Nature: English Kinship in the Late Twentieth Century. Cambridge: Cambridge University Press.
The Times of India. 2018. Lok Sabha clears Bill banning commercial surrogacy. The Times of India, 20 December. https://timesofindia.indiatimes.com/india/lok-sabha-passes-surrogacy-regulation-bill-2016-which-bans-commercial-surrogacy/articleshow/67165408.cms
Weeks, Jeffrey, Brian Heaphy, and Catherine Donovan. 2001. Same Sex Intimacies: Families of Choice and Other Life Experiments. London: Routledge.