One of the most significant human pursuits is the desire to start a family and have kids. However, family and kinship systems in India have traditionally been governed by the demand for blood relations within a patriarchal realm. As a result, stigmatization of infertility and childlessness stems from one’s failure to generate one’s biological children (Widge 2000). In these circumstances, ARTs are crucial in facilitating the formation of families in circumstances when doing so is socially or medically difficult. Nonetheless, the ART Act 2021 does not recognize the significance of this technology. The act forbids the use of ARTs by nonmarital and same-sex couples. The PSC report endorses these legislative changes and cites progressive laws from France, Switzerland, and Ireland that permits lesbian couples and single women to get ARTs. It exemplifies the ingrained gender inequality in our culture. It limits surrogacy to partners legally wed under Indian law, barring same-sex and non-binary couples from having children. Acts like these are egregious insults to the LGBTQ + community and childless single fathers.

Validation of same-sex relationships in India is as recent as 2018 when a bench of five judges of the Supreme Court of India decriminalized homosexuality. In their judgment, they modified certain aspects of Sect. 377 of the Indian Penal Code (IPC), thereby granting LGBTQ + individuals the freedom to engage in consensual sexual activities without the threat of being imprisoned. Data regarding the precise count of gender and sexual minorities in India is still not available publicly, but a rough estimate from 2018 suggested that approximately 104 million individuals in India, constituting 8% of the total population, identify as part of the LGBTQIA + community (Gopinath 2022). Around 15% comprises lesbian, homosexual, bisexual, transgender, and queer (LGBTQ +) people, whereas 20% of surrogacy recipients are single parents. Despite this substantial demographic, the noticeable disparities in health outcomes among LGBTQIA + citizens reveal significant marginalization. Some gay and lesbian couples are unable to comply with Sect. 2(h) of the Act since same-sex marriages are still illegal in India. Additionally, the regulation is extremely explicit that only heterosexual married couples are permitted to employ surrogates and undertake ART procedures as it does not align with the “Indian ethos” (Fotedar 2019). In the parliamentary debate, the bill was criticized for excluding live-in couples, single men, and the LGBTQ + community from the Assisted Reproductive Technology (Regulation) Act 2021 provisions. They condemned the legislation as being “discriminatory” and “patriarchal.” Congress member Karti P Chidambaram, who initiated the debate on the Bill, remarked, “This law is not in line with Hindu principles, but rather resembles a law from the Victorian era” (Sharma 2021). Supriya Sule, representing the Nationalist Congress Party (NCP) from Baramati, Maharashtra, expressed her intention to inquire about the synergy between the Surrogacy Bill and the ART Bill to the Health Minister. In her statement, Sule emphasized the importance of considering couples desiring to have children and a diverse group of individuals in the country who aspire to become parents, including the LGBTQ + community and single fathers. She highlighted the current restrictions faced by single men due to the 2017 adoption rule, which prevents them from adopting girls. Consequently, this limitation also hampers their ability to benefit from the ART Bill (Press Trust of India 2021).

Even the Select Committee’s 102nd Report on the Surrogacy Regulation Bill (SRB) restricts access to surrogacy to married couples and has an impact on PSC. The PSC defends its biased stance by arguing, “[g]iven Indian family structure and social milieu and norms, it will not be very easy to accept a child whose parents are together but not legally married” (para 4.2.15) (Parliamentary Standing Committee on Health and Family Welfare 2017). This is due to concerns regarding potential parentage/parenting issues in the event that same-sex and live-in couples decide to part ways. This seems to be a very biased, stereotypically patriarchal view where marriage is sacred, stable, and permanent, whereas all other kinds of coupledom are temporary and in the process of “separation-in-waiting” (Parliamentary Standing Committee on Health and Family Welfare 2017). Additionally, it does not have anything particularly Indian, about this concept of “family structure and social milieu” (Banerjee and Kotiswaran 2021a, b). Even though it is believed that a variety of intimate relationships were common in the ancient world, including various kinds of marriage, such as gandharva vivaha (mentioned in the Vedas, this type of marriage was purely based on love, passion, mutual consent, and freedom of choice), which, much like modern-day live-in couples, involves partners presenting themselves together without any kind of ritualistic ceremony (Bhatnagar n.d; Bhattacharya 2019). Also in light of the Medical Termination of Pregnancy Act of 1971, it prohibits women from having an abortion. It penalizes them for becoming pregnant as a result of sexual relations by obligating them to give birth. In contrast, widows or single women are not allowed to avail themselves of surrogacy services, even if they desire to have children but are unable to bear them (Manjunath 2018). The 2021 Act defines a couple as an “Indian man and woman” married and above the ages of 21 and 18, respectively. These restrictions exclude individuals in live-in relationships who may wish to access surrogacy services. Aligning the definition of a couple with the stipulation in Sect. 2(h) of the Act reinforces the institution of marriage (Sasha 2020). Moreover, the Act excludes couples who may be medically unfit or dealing with chronic diseases that could increase the risks for the unborn child. The Act remains vague regarding which conditions or diseases are permissible for surrogacy, leaving the discretion with the National Assisted Reproductive Technology and Surrogacy Board to make determinations on this matter. Contrary to expectations, the PSC cites Puttaswamy v. Union of India [(2017) Writ Petition Civ 494/12, (SC)], in which the Supreme Court acknowledged women’s right to reproductive autonomy. And it does not base eligibility for ARTs on a woman’s marital status; rather, it sets the minimum age for access at 21. In this way, ARTs are accessible to women who are single, unmarried, divorced, or separated. However, their rights become irrelevant when those very women get into relationships (i.e., as same-sex or live-in couples). Therefore, the study selectively employs pro-women constitutional language, as though women’s reproductive rights might be modified based on their marital status. In a nation where advocating for the rights of single parents and live-in couples with children remains an uphill battle, the issue of discrimination against LGBTQ + parents is conspicuously absent from public discussions. The legal and societal recognition of parenthood rights for individuals in the LGBTQ + community is nonexistent. Despite previous Supreme Court judgments that have interpreted Article 21 of the Constitution, pertaining to the right to life and personal liberty, as encompassing the right to motherhood and reproductive autonomy, these interpretations do not seem to extend equally to same-sex couples, transgender individuals, and the broader LGBTQ + community. Even the United Nations’ Universal Declaration of Human Rights, as articulated in Article 16, establishes that “men and women of full age… have the right to marry and to have family” (Mehta 2021). However, this phrasing in a document over 72 years old remains exclusionary. Regrettably, in India, even in 2023, the opportunity to start a family is exclusively available to heterosexual cisgender men and women. The majority of family laws in India, encompassing adoption, surrogacy, succession, guardianship, and similar matters, are interconnected with the institution of marriage. Unfortunately, as the LGBTQ + community has been excluded from the right to marry, their access to these laws is significantly restricted. As per the Adoption Regulations of India in 2017, outlined on the official website of the Central Adoption Resource Authority (CARA), couples who have been married for a minimum of 2 years, along with single women, are eligible to adopt children of any gender. However, single men are only permitted to adopt male children. Surprisingly, there is a complete absence of mention regarding couples in live-in relationships, same-sex couples, and transgender individuals, almost as if their existence is disregarded (Mehta 2021).

The Supreme Court invalidated Sect. 377 of the Indian Penal Code, 1860 in Navtej Singh Johar and Ors v. Union of India, which paved the way for homosexuality to be accepted as a legal lifestyle in India (Babbar and Sivakami 2022). Since gay relationships are legal in India, it is logical to assume that any homosexual couple that resides together should be regarded as a live-in couple. In S.PS. Balasubramanyam v. Suruttayan, the Supreme Court decided that children who reside with their parents are treated the same as their biological siblings. The Act also breaches a number of prior statutes. In accordance with adoption legislation, for instance, divorced and unmarried individuals may adopt. Sections 7 and 8 of the Hindu Adoptions and Maintenance Act of 1956 and Sect. 57 of the Juvenile Justice (Care and Protection of Children) Act of 2015 authorize single and divorced adults to adopt children (Saraswat and Mondal 2022). The reasoning for aforementioned regulations presents a persuasive argument for allowing unmarried and separated individuals of any gender to utilize the services offered by ART clinics and banks.

Intent-based parenting and individual planning have replaced the traditional notion of a family, placing a greater focus on an individual’s autonomy (Chandran 2022b). The Supreme Court in Puttaswamy, emphasized reproductive autonomy, which entails exercising free will in decisions about conception, as a critical component of privacy rights (Saini 2022). Equal protection under the law is also guaranteed under Article 14 of the Constitution, which prohibits arbitrary legislation without a reasonable, credible, and legal basis for discriminatory action. This implies that the state cannot ban surrogacy for a specific group without presenting them with a rationale (in any form it has authorized). When restricting a fundamental right, “the greater good” of society must always come first. The well-being of the intended child should also be considered in the surrogacy agreement, in addition to the engaged couples. The emotional and psychological health of the intended kid is more important than any formal claim of paternity. In the Mausami Moitra Ganguli v. Jayanti Ganguli case, the Supreme Court defined “child welfare” as encompassing a stable and safe environment, affection, and an atmosphere that promotes the child’s healthy development. Numerous rulings on the subject by Indian and foreign courts have led to this viewpoint. Regardless of how the parent–child relationship may seem, atmosphere and temperament will ultimately define these situations. There is no testimony that a committed gay couple could not parent their kids as effectively as heterosexual couples. According to a recent study conducted by the University of Oxford researchers, children raised by LGBTQ + couples exhibit better academic performance compared to their counterparts raised by heterosexual couples. The study, conducted in the Netherlands, the first country to legalize same-sex marriage, analyzed data from 2971 children with same-sex parents (comprising 2786 lesbian couples and 185 gay male couples). Additionally, the study encompassed data from over a million children with different-sex parents, tracking their educational progress from birth through primary and secondary education. The Delhi Commission for Protection of Child Rights (DCPCR) has lent its support to the adoption of children by same-sex couples through an intervention application (Bakshi 2023). The commission asserts that no evidence or empirical data is indicating that same-sex couples are unsuitable as parents or that the psychosocial development of children raised by same-sex couples is compromised in comparison to those raised by heterosexual parents. The DCPCR emphasizes the importance of creating public awareness, both at the national and state levels, that same-sex family units are as fine as the children belonging to such families are in no way incomplete. The commission urges the Union and state governments to take proactive measures to foster understanding and acceptance of same-sex families (Ermac 2020). In light of this, the Act’s ban for a couple or a person from having a child via surrogacy remains until the time their sexual orientation does not influence the best interest of the child. Even after death, the need to restrict procreation to the marital state persists. Consequently, the study illustrates:

that posthumous reproduction should be permitted, even in the absence of the deceased’s prior consent unless the deceased person has previously objected to it or there are strong indications that the person would not have agreed to the collection of gametes, posthumously (PSC para 4.17.12)

It is incongruous that the ART Bill and PSC report exclude the desire to produce offspring of single males and live-in or same-sex couples while presuming that a deceased person had provided permission for the harvesting of his gametes for use by his spouse. Consequently, the cultural occurrence of childlessness is viewed as a “problem” that ARTs should selectively address. The use of technology to rethink families or come up with other arrangements is prohibited. Instead, it is seen as nothing more than a tool for reproducing in a way that the patriarchy permits (Chandran 2022a, b). Notably, the PSC report promotes access to ARTs for persons with HIV, intersex people who are infertile, couples who do not want to pass on genetic diseases to their kids, and anybody else with a medical condition and equivalent transmission concerns. However, as suggested by the PSC report, the ART Bill, 2020, cannot include such important eligibility restrictions for obtaining ARTs that are not directly related to infertility. It must be explicitly stated in the law itself. It is important to note that the ART Act, 2021, restricts surrogacy eligibility to “infertility” alone, but the SRA 2021 increases eligibility to include “medically necessary conditions.” In contrast to Article 14, which guarantees equality to all, this results in various requirements for commissioning couples, which are then implemented differently (Kashyap and Tripathi 2022).