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Assisted Reproduction

A Different Perspective On Gay Surrogacy In India

As readers of this blog know, we have been covering the ongoing debate about the pending legislation being considered by the Indian Parliament that will regulate its emerging surrogacy industry. Among one of the most contentious issues is whether India will allow same-sex couples to work with surrogates. The Communications Consultant for Indian-Surrogacy.com was kind enough to provide me with the statement of a prominent Indian embryologyist and surrogacy program director at the Kiran Infertility Centre in Hyderabad, Dr. Samit Sekhar, on the viability of gay couples proceeding with surrogates in India.

To be clear, Dr. Sekhar’s position on the matter is in conflict with other experts who have also opined on the impact of existing Indian law regarding homosexuality as well as the impact of the pending legislation. While ultimately time will tell what the legislation will contain, I wanted to present the other side of the debate:

“Every day seems to bring new reports about how the proposed Assisted Reproductive Technology
(Regulation) Bill 2010 is going to effectively ban Gay Couples/ Single Parents from surrogacy in India.
Comments from an unnamed official are yet to be backed up by any real evidence of a version of the
Bill containing anything like what is being touted by media in India and Abroad.

The last public draft of the ART Bill included in its definitions the possibilities for couples, regardless of
sexuality who’s relationship or marital status is recognized in their home country to be eligible for
surrogacy treatment in India, and thus far we have seen nothing to indicate anything to the contrary.
And until such time as the Bill does become law, the precedent for eligibility is quite clearly laid down
in the Supreme Court Judgment in the case of Baby Manji Yamada Vs. Union of India in 2008, to
include a single parent, or a gay male couples.

The fact of the matter is that the Bill has a long way to go before it does become law and in the
meantime speculation based on the comments of few officials serves only to worry parents who are
currently undergoing surrogacy treatments in India. This leads to needless distress as the situation
remains unchanged. There should be a clear distinction between individual attitudes towards a
particular subject either being homosexuality or single parenthood and the actual legal precedents that

The Union Law Ministry will no doubt be considering the proposed legislation as it stands and are
likely to engage in a period of consultation, hopefully with practitioners and all the stakeholders before
making any changes and passing a finalized version of the Bill in both houses of Parliament for their
majority approval. I am confident that this will not be done hastily and that we will have our chance to
petition on behalf of all parties involved including all couples and single parents for their continued
eligibility for surrogacy as well as to input in to the broader regulations that the Bill outlines.

We personally support the aims of the Bill in general; to create ethical standards for assisted
reproductive treatment and to ensure that rights of all parties are protected – commissioning parents,
the surrogate and ultimately the baby. It seems that the underlying theme of the Bill is to remove
uncertainties over citizenship, establish rights and responsibilities and to avoid protracted legal cases
by setting out clear rules, and not to preclude certain people from this form of fertility treatment.”


10 comments for “A Different Perspective On Gay Surrogacy In India”

  • Jon

    Dr Sekhar does not have it right. Here is how the ART Draft 2010 bill defines “couple” in its proposed legislation which will be voted upon by the Indian Parliament.

    Chapter 2 – a. “couple”, means two persons living together and having a sexual
    relationship that is legal in India;


    I have also included the link from the ICMR which includes the draft bill .pdf.

    As you will note in the wording, only heterosexual couples will be recognized as homosexuality and same-gender partnership is illegal in India. The only “loophole” to this is that the Draft Bill allows for “singles” to commission a surrogate pregnancy. Assuming this legislation is passed in the form drafted by the ICMR then gays presenting themselves as singles will still have the option to use India. But those presenting themselves as couples will run into trouble with the Indian bureaucracy. The clinics (like Dr Sekhar) may be sympathetic and accomodating but they are only one part of the equation. Obtaining exit visas for the baby(ies) will be outside the scope of the clinics and will follow whatever legislation is on the books.

  • Jon

    PS – please do not delete these comments as other comments of mine have been deleted. There are dozens of couples (if not more) who are currently stranded in India from various countries because they did not do their due diligence regarding citizenship and Indian laws before engaging their respective clinics. My experience has been that the clinics are quite good at getting people their babies; but once “delivered” they disappear into the background very quickly and do not offer any assistance to their clients for getting the babies out of India if there is some kind of conflict.

    • Hi Jon,

      Thank you for providing your insight and links. Also, we do not delete any comments unless they are libelous or personally attack another commenter. If any of your comments were removed or did not appear, please let me know as they may have been mistakenly characterized as spam by an automated process we use on this blog.

  • HenryG

    Looking at the definition Jon provides, why would this be interpreted to preclude same-sex couples? It doesn’t even seem to require that the couple’s relationship be recognized by their home country. It just requires that the sexual relationship is legal in India. India’s court system has decriminalized homosexuality, right? Thus, even if there’s still a law on the books to the contrary, it’s null & void, unless India’s legal system works differently than the US/UK.

  • Jon


    India has not decriminalized homosexuality. There were some freedoms granted in the city of Delhi (1% of total population of India) but that is at the local level, not at the Federal level.

    India is an extremely conservative and patriarchal society with a population of over 200 million Muslims as well; so the road to freedom for gays will be a long one. I don’t see it happening there for at least another generation, if that.

    So, given the definition above, there is a double-standard so to speak right now occuring. Foreign gays who approach surrogacy clinics that are willing to work with gays can have a baby regardless of their orientation; but Indian nationals who approach these same clinics as gay or coupled are barred from their services. This is precisely the contradiction that the Indian parliament is faced with in drafting new ART bills that impact gay clients to the surrogacy clinics; which is a big money-maker both for the clinics and by default the Indian Treasury. The Indian parliament has to be very careful when they consider this legislation that they do not by default legalize surrogacy for gay foreigners and by virtue of that run into issues with de fact legalization of homosexuality in India. The forces of opposition including the nationalists, religious fanatics (of which there are hundreds of millions!!!), the women’s groups, etc, etc, etc make this a long uphill battle.

    The option right now (and which the new ART bill proposes) is to allow for “singles” to approach the surrogacy clinics. I believe the drafters of this bill are very sympathetic to the rights of gays and have included this loophole to continue the trade with gay clients; but understandably so even their hands are tied and I think most of them prefer that gay clients use some discretion, common sense, and approach the clinics as single desiring parents. Otherwise this whole model could collapse and the Indian governemnt, bowing to pressure, could just enact a clause that endorses surrogacy only for Indian nationals who are married heterosexuals. That would be very unfortunate, putting it mildly

    • HenryG

      Jon–Thanks for your thoughtful and detailed reply. I’m a lawyer but not very familiar with India’s legal system. I’ve read that the High Court’s Naz Foundation case decriminalized homosexual sexual activity and that the holding of that case, that Section 377 of the Indian Penal Code is unconstitutional, applies throughout India and not just in Delhi. Seems that you disagree with that.

  • Jon

    The judicial system in India is far too vast and complex to discuss in a forum like this. Suffice it to say, even a ruling at the federal level doesn’t always become the law in practice where India is concerned. Laws passed are many times nothing more than ink in some statutes; India is more driven by the curse of a rigid case system, tribalism, religious pluralism and idiosyncracies (i.e. Muslims allowed legally 4 wives unlike other religions in India, etc), patriarchalism, and a number of other social and cultural assumptions that often supersede any law passed.

    The law in question actually “decriminalized” homosexuality. It DID NOT legalize homosexuality de fact. It merely stated that those caught having same-gender sexual relations could not be prosecuted by the Indian state. To assume otherwise is not correct. It is like saying if the US struck down DOMA or “Dont’ ask don’t tell” that it would by default legimitize gay marriage and legitimize gays serving in the military, which we know is not the case.

    The ruling in Delhi was more a repudiation of legacy British statutes that are on their books and which the Indian intelligentsia and nationalists want scourged from their legal system as a proclamation of India ascending as a global superpower. it does not in any way reflect the prevalent social and cultural norms in Indian society. You will find that even in the most liberal circles in India there is a great unease about gay rights and taking an activist position on such matters. Even people in the most “progressive” cities like Mumbai or Delhi are cautious as they could incur verbal or physical abuse from the religios nutcakes, the nationalists, etc and other very vocal groups for whom being gay is an anomaly only Westerners succumb to.

    Take note of the current dialogue going on of the new book stating Gandhi was perhaps a bisexual and see the furious reaction it is causing in India. In some states the book has even been banned…

  • Ekta

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  • Maria Caprizzi

    Thank you for such a thought provoking article. It lends a great case as to why we should stick with American organizations if considering surrogacy. There are a surprising number of women in the U.S. who are considering becoming a surrogate mother to families who want children. Also I’ve found that the organizations facilitating the process are caring people who have a deep desire to fulfill the dreams of all couples desiring to become parents. I wish you all the best of luck.

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