The Home Ministry may have decided not to issue visas to foreign gay couples heading to India to avail the services of surrogate mothers, but the draft Assisted Reproductive Technologies (ART) Bill keeps open the question of whether gay/ lesbian couples from India can do so.
Mindful of the pending verdict of the Supreme Court on the Delhi High Court judgment on Section 377 decriminalising gay sex, the Indian Council of Medical Research, which is drafting the ART Bill, has worded the draft to say that any two people can employ a surrogate mother provided their relationship is legal under the Indian law.
This, after the majority expert opinion in course of consultations was found to be in favour of gay/ lesbian couples being allowed to hire a surrogate mother.
The draft Cabinet note on the Bill is currently with the Law Ministry.
“In the draft we have said that any couple in a married or a live-in-relationship or any relationship that is legal in the country can hire a surrogate mother provided the woman is not medically capable of having a baby. The expert committee was not in favour of making an exception for people in homosexual relationship. However, after extensive discussions it was decided to include the condition that the relationship would have to be legal,” explained ICMR Deputy Director General Dr R S Sharma.
The conditionality essentially leaves the ultimate decision on whether a homosexual couple can hire a surrogate mother on the Supreme Court that is examining the legal validity of the Delhi High Court judgment but has refused, so far, to stay it. Thus the present legal position is that though an act of consensual homosexual sex is not criminal, the question of whether it is legal, remains open to interpretation.
The ART Bill has been in the drafting stage for three years.
The present Bill says that a woman can be a surrogate mother only thrice in her lifetime (including her own children) and a man can donate sperms only 75 times, as the expert committee was of the opinion that it is the cut-off to prevent the