The Indian Cabinet has cleared the Surrogacy Bill, which not only bans commercial surrogacy, but also restricts the option to only heterosexual couples who have been married for five years and are childless. Indian laws are seldom made specifically for homosexuals. Even Section 377 does not explicitly mention homosexuals. Yet the Surrogacy Bill is an exception, as it specifically bars homosexual couples (apart from single persons) from opting for surrogacy to have children. Sushma Swaraj, the External Affairs Minister, said at a press conference that allowing homosexual couples to raise children is against “Indian ethos”. Further, Times of India reports that the govt is firm on denying homosexual couples the choice of surrogacy. The report quotes health minister JP Nadda as saying, “We do not recognise gay couples.”
It is strange that the minister says that homosexuality/homosexual couples are not part of Indian ethos. This government has been spending crores on cleaning of Ganga, yet the story of Bhagirath, who brought Ganga to earth, is deeply tied to homosexuality. According to Krittivas Ramayan (which is popular in Bengal), Bhagirath was born out of of sexual union between the two queens of King Dilip. He was brought up by two mothers, the kind of family that this government thinks is against Indian ethos. Similarly Agni, the God of fire, who is central to all Hindu rituals, is said to be born of two mothers. According to Shiva Purana, Karthikeya, the God of War, is the son of Agni and Shiva, both male Gods. Hindu mythology is replete with such tales of birth from two males, or two women, or a single male or woman. Are all these Hindu gods against Indian ethos then?
For too long the government was hiding its homophobia behind either the courts, technicalities, or ambiguous situations. Supporters of the NDA government would claim this government had never spelled its stance on homosexuality, that the silence of the PM on the issue meant that there was hope. The good cop-bad cop role played by its ministers by speaking both in favour and against Section 377 from time to time further emboldened such voices of hope. That ever since the government came to power, it was constantly either abstaining, or voting against pro-LGBT UN resolutions had always been an indication of what the government thought about LGBT issues.
However, this surrogacy bill is the first time that the NDA government has explicitly said that it favours only one form of family – the straight-married family. Not just homosexuals, live-in couples and single people too have fallen foul of the government. The Times of India report says, “Nadda said, discussions and deliberations show “a child needs a family” and therefore, singles cannot be allowed surrogacy. On homosexuality, he reiterated India does not recognise gay couples.” Homophobes, even in the West, have often employed the argument that a child needs a “heterosexual family” for proper care to deny gay couples the right to raise a family. Various studies have now shown that children raised by homosexual couples are not in any kind of disadvantage and grow up fine.
The government claims that it is trying to protect the poor woman who gets exploited in surrogacy. If that is the case, one fails to understand how banning single parents, homosexual couples and live-in partners from surrogacy protects a woman. Never before in independent India has a bill targeted homosexuals the way this bill does. The government could have easily left out the mention of homosexual couples, but that would have left out a grey area which could have allowed homosexual couples to challenge the bill (when it becomes a law) in the court. But it wanted to make sure no such thing happens in the future easily, even if the courts decriminalise homosexuality. If non-recognistion of gay couples is the issue, it could repeal/ammend Section 377 and legalise gay relationships, instead of banning gay couples. But it didn’t. As journalist Sandip Roy put it in a Huffington Post blog, “the Surrogacy Bill as proposed by the government is just homophobia and bigotry disguised as surrogate welfare.” If that is the attitude of the government, one shudders to think the stance it will take before the Supreme Court when the curative petition on Section 377 is heard.
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