Chennai: It was a tweet that set the internet on flames, early this week. Nayanthara and Vignesh Sivan, both in their late thirties entering into wedlock only in June this year and sharing their joy on becoming parents, has left everyone wondering 'so soon. But, was it legal, was the question that came up when it became known that this was through surrogacy?
Well, it required a celebrity pair to bring attention and a renewed focus to the Surrogacy Act 2022. They were in a relationship for a long and the Act came into force only in January this year. Even as the state government has instituted an inquiry to ascertain the facts, the issue has brought the spotlight on some areas left unaddressed in the statute. Both those in the medical profession and women's rights activists have called for changes in the statute.
“If we look at who all have been made eligible to opt for surrogacy and who was not, clearly shows a bias. It raises the question of gender equality which is very much missing. It is not applicable to those in living-together relationships. Considering the recent Supreme Court judgment which upheld the right of unmarried women to have abortions, this statute would look anachronistic. And we cannot deny the demand from queer communities to expand the law to be more inclusive,” says Dr. Shanthi Ravindranath.
“Only when we expand this to cover single men and divorcees, this would serve gender equality. Also, when infertility in the country is on the rise, our laws ought to be more in sync with scientific studies and made simple without complications,” she argues, drawing attention to WHO statistics on couples without children in India remaining at 3.9 percent to 16.8 percent.
While admitting that the Surrogacy Act was aimed at the commercial exploitation of poor women engaged as surrogate mothers, Dr. Amalorpavathan Joseph said the law is clear on who could opt for surrogacy and who could be an intending mother. “It can't be availed with the intention to keep one's physique and beauty intact. That is the rationale behind the age limitations imposed. A woman can be a surrogate mother only once that too without pecuniary benefit. However, monitoring it is difficult,” he reasoned.
For Valentina of AIDWA, this statute prescribing the age limitations primarily deprives women of their agency. She too called for the inclusion of single women and men as well as sexual minorities under the ambit of the law.
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The DMK appears to be way ahead of others. Successive DMK governments from late patriarch M Karunanidhi onward have initiated several measures to bring sexual minorities into the mainstream.
Party Lok Sabha member Thamizhachi Thangapandian had in July 2021, urged the Centre to remove the provision permitting only heterosexual couples to have children through surrogacy. In her view, this deprived those who identify themselves as LGBTQIA+ of having children. Besides the Surrogacy (Regulation) Act and the Assisted Reproductive Technology Act, the Medical Termination of Pregnancy Act excludes LGBTQIA+ persons. Under the ART Act, a person capable of donating an egg has to be married and must have a child not less than three years old, she said and called for its withdrawal.
The ongoing probe into Nayan-Vicky surrogacy was instituted without waiting for any complaint. And Health Minister Ma Subramanian has made it clear that it is aimed at bringing out the truth and ascertaining whether there was any violation. According to legal experts, the celebrity couple might escape unscathed like other celluloid stars who have opted for it before since the Surrogacy Act had come into force only this January, months after the surrogacy procedure took place. “It is extremely doubtful whether the statute will have retrospective effect,” says K Elangovan, practicing at Madras High Court.
