Understanding IVF process, Queerness, and Legal Frameworks in IndiaSubscribe

  Team Orom 2023-01-25 4 Min

               

Ask Indians what matters the most to us, and our usual response is ‘Family.’ Yet, when it comes to having one, sometimes one wonders if our approach is truly egalitarian.

Recently, governments have attempted to regularize assisted reproduction through IVF and surrogacy bills. Adoption laws have been in place for decades now. However, one question we must ask ourselves constantly, as a community, is – Are we really inclusive? Is the IVF process actually as unbiased as it seems? What are the provisions for members of the LGBTQIA+ community who want to be parents and have a family?

While Section 377 has been decriminalized, the system needs to acknowledge that equality of life is not just about having one’s sexual orientation legally accepted. It is also about no discrimination in any way, as approved by the constitution of India.

So, when the ART and surrogacy bill leaves queer people out of its purview, it violates article 14 of the Constitution of India (https://indiankanoon.org/doc/367586/). It also makes one wonder whether queer people are being left out because they cannot legally marry (while homosexuality is decriminalized, homosexual marriages are still illegal), or is it because of unspoken biases in their parenting capability?

Does this mean homosexual live-in couples can undergo IVF treatment to have children independently as single individuals? Can a lesbian mother present herself as a single woman and avail of the facility of a donor? Is it possible for one lesbian partner to be the egg donor and the other to be the gestational carrier?

What will be the legal status of these parents in that case? Examples discussed across media outlets show that only one partner is acknowledged as a parent. The other is simply listed as an emergency contact or a friend.

In our country, where parenting rights for single parents and live-in couples are still an uphill battle, the right to parenthood for queer people doesn’t even seem to be a question that lawmakers are concerned with. 

The SC, in the past, has ruled that the scope of Article 21 (https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021) should also include the right to reproductive autonomy (https://indiankanoon.org/doc/106417919/) and right to motherhood. 

However, it seems like this right is still not accessible for same-sex couples, trans people, and the queer community by and large. It looks like India has a long way to go before all our citizens can appropriately consider having a family through assisted reproductive technology like IVF.