Sushma Swaraj might have the best intention in the world – to protect the rights and well being of surrogate mothers. But the Surrogacy Bill as proposed by the government is just homophobia and bigotry disguised as surrogate welfare.
Actually, not that disguised either. The Foreign Minister was quite up front about why only married couples could avail of surrogacy. Gays, single persons, live-in couples are not welcome.
"We do not recognize live-in relationships and homosexuality. We don't give them this entitlement," says Swaraj. Just last year the Supreme Court ruled that in "modern times, live-in relationship has become an acceptable norm. It is not a crime." The Court has been quite clear what it thinks about live-in relationships. It has said the woman, for example, is eligible to inherit her partner's property after his death. It spelled out its view unambiguously.
"It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin."
But Swaraj and the government of India clearly thinks otherwise at least when it comes to raising families. If the court took two steps forward, the government of India just took a giant leap back. The government deems anyone outside a heterosexual marriage as incapable of the most fundamental human ability of all – the ability to love a child and raise a family.
There is certainly need to protect the rights of surrogate mothers. There are valid debates to be had about the loopholes in commercial surrogacy or even the ethics of it all. There is need to ensure that poor women are not exploited by those seeking to be parents.
Some surrogacy activists have demanded that the women have a right to be unionized, that they should have more say in their contracts, that just because they might be poor or illiterate they should not be taken advantage of. There is no law in place currently that protects a surrogate if the commissioning parents abandon the child if they are not happy with it for any reason. All of these concerns are valid. All of these needed to be addressed.
But what does it matter to that woman, who is doing this to earn money perhaps to raise her own children, whether her client is a married heterosexual couple or a gay couple or an NRI or Tusshar Kapoor?
The government railed against celebrities for whom surrogacy is a luxury or fashion. But in the process Swaraj took already marginalized communities and stigmatized them further. The government of India just told them "You are not fit to be parents." Is wanting to be a parent a luxury?
Interestingly Swaraj did not take refuge in Section 377 to deny gay couples their right to have a child. Once Kiran Bedi, as the police officer in charge of Tihar jail had said that the NGO Naz could not distribute condoms in jail because that would mean condoning homosexual sex and that would be in violation of Section 377.
That decision led to Naz challenging 377 in court. Swaraj did not say that allowing a gay couple to use a surrogate would mean effectively going against the spirit of Section 377. She categorically said that "You can say it (allowing homosexuals to have a surrogate child) is looking forward and we can say this doesn't go with our ethos."
The only hint of modernity here is that Swaraj mentioned "homosexuals" specifically. It was an acknowledgment at least that gays have relationships and want to raise families just like everyone else. There was an acknowledgement that much of the world has moved on, that gay families raising children is not that outlandish an idea anymore. According to the 2010 US Census, one quarter of all same-sex households are raising children. And that was before the US Supreme Court ruling on marriage equality.
Swaraj pretty much said she does not care if the world is changing. It's all about our sanskar and ethos and gays have no place in it. Gays are already not allowed to adopt children. Now the only other avenue to have a child has been shut in their face by the government. The government goes on and on about our family values and then denies that very right to a whole swathe of its own citizens.
What the government did yesterday was discrimination, plain and simple. It effectively made live-in couples, single persons, gays and even NRIs second class citizens of India. That they did it in the name of protecting the rights of surrogate women just makes it that much worse.
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