Earlier this week we blogged about the the Assisted Reproductive Technologies (ART) Regulation Bill of 2010 which is slated to be presented before the winter session of the Indian Parliament. Diane Hinson, a fellow member of the ABA Assisted Reproductive Technologies Committee, kindly reminded me last night that the new Indian law, as currently proposed, could prohibit same sex couples from working with an Indian Surrogate.

Section 2(d) of the draft bill defines a “couple” as “two persons living together and having a sexual relationship that is legal in India”. The problem is that §377 of the Indian Penal Code, introduced in 1860, outlaws homosexuality in India:

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section

While a Delhi High Court ruling decriminalized homosexuality in 2009, there has been no follow-up legislation legalizing it. As a result, there is significant uncertainty as to whether same sex couples will be able to continue to use Indian surrogates if this bill is passed.

We will continue to update this blog as this bill progresses through Parliament.