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Denying Choice, Defying Precedent
In trying to “regulate the practice and process” of surrogacy through the Surrogacy (Regulation) Bill, 2019, the imagination of a “family” is limited to strict heteronormative, patriarchal definitions. This definition excludes the never married, the widowed, the divorced, lesbian, gay, bisexual, transgender and queer couples and numerous other classes of people who do not seem to fit within the rigid patriarchal norms outlined in this bill. Such exclusion is in the teeth of established jurisprudence of the Supreme Court and an affront to constitutional values
After a failed attempt to pass legislation regulating surrogacy with the Surrogacy (Regulation) Bill, 2016 (Sonak and Bhatia 2021), the union government looks set to succeed at the second attempt during the ongoing monsoon session. The Surrogacy (Regulation) Bill, 2021 (“the 2021 bill”),1 which was earlier cleared by the Lok Sabha and has now been passed by the Rajya Sabha, is on its way back to the Lok Sabha for ratification of the changes made by the Rajya Sabha (Roy 2021). I have, in the past, critiqued the 2016 version of the bill (Kumar 2017) pointing out the regressive aspects of it. The then Standing Committee of the Rajya Sabha had also pointed out the massive problems with the draft bill, highlighting the problematic ways in which the bill approaches the very definition of surrogacy (Rajya Sabha 2017).
However, the 2021 version of the bill accounts for little of the criticisms levelled against it. What aggravates the matter further is that between 2016 and 2021, the jurisprudence around the right to equality, women’s livelihood, and choice have changed dramatically, yet the present bill does not take them into account.
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