THE ASSISTED REPRODUCTIVE TECHNOLOGIES

ABSTRACT

Legal decisions encompass assumptions about the nature of social life and notions about what constitutes “proper" moral conduct. Contemporarily, questions have arisen as to what constitutes a family or a “normal family". Growth in science coupled with liberal changes in the law has lead to a shift from the concept of families as known traditionally. The article analyses the Assisted Reproductive Technologies (Regulation) Bill, 2010 which is to be tabled in the Monsoon Session of the Indian Parliament to examine the existent notions of family in India. Further, the article scrutinizes the Bill, drafted in order to regulate procedures regarding the use of assisted technologies for reproductions in India, in the light of the right to equality and prohibition of discrimination on grounds of sexual orientation. The Preamble to the Bill recognises the right of every couple to have a child. Ironically, the Bill does not acknowledge the right of homosexual couples in India to avail assisted reproductive technologies in order to do the same. The article proves the existence of a right to reproduce and further argues that such a right is inclusive of reproduction through assisted reproductive technologies by resorting to constitutional guarantees of privacy and equality. Since such a right has been denied to homosexuals, the article then subjects the Bill to non-discriminatory test and strict scrutiny analysis in order to deduce the constitutional validity of the Bill. The article concludes by recommending changes in the Bill in order to allow homosexual parenthood, thus furthering the attainment of “full personhood" as contemplated in the Naz Foundation case.

I. INTRODUCTION

The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy... Disapproval of homosexuality cannot justify invading the houses, hearts and minds of citizens who choose to live their lives differently. [1] 

-Justice Blackmun

Decriminalisation of consensual sexual acts between adults in India was a significant and progressive leap taken by the High Court of Delhi in the Naz Foundation v. Government of NCT of Delhi [2] (hereinafter Naz Foundation case). The court also established the right of homosexuals to full personhood. [3] “Personhood" is the sense of being an individual. It encompasses self-development, dignity, and humanity. Personhood is developed through introspection, relationships with others, and through one's interactions with the state. [4]   Thus, for complete attainment of homosexual personhood, it is imperative that the focus now be shifted to rights that need to be afforded to homosexuals in order to enable them to lead a normal life. One of such rights is the right to reproduce. Since same-sex couples cannot reproduce by heterosexual means, they are left with no options but to employ assisted reproductive technologies to have children genetically related to them. However, the Assisted Reproductive Technologies (Regulation) Bill, 2010 [5] imposes legal hurdles disabling homosexual couples in India from resorting to assisted reproductive technologies.

Assisted Reproductive Technologies (ARTs) are non-coital methods of having children including in-vitro fertilisation, artificial insemination and surrogacy. In-vitro fertilisation of embryos refers to embryos whose fertilisation, or any other process by which the embryo was created, began outside the human body. Artificial insemination is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse. The most common instance of non-coital procreation among female same-sex couples involves gay women who request artificial insemination with sperm obtained from donor friends or purchased from sperm banks. Surrogacy is an arrangement in which the child is borne by a woman outside the couple. A commercial surrogate mother is one who is commissioned and paid to undertake the labour of pregnancy in order to produce a child that will be delivered to the commission parties who will raise the child as their own and will hold all the parental rights. A partial surrogate contributes the egg that becomes the child and so is genetically as well as gestationally the parent of the child. A full surrogate is not the genetic other of the child she bears. For male same-sex couples, surrogacy is the only means of assisted reproduction to have a child. In some cases, the surrogate mother provides the egg which is fertilised with sperm obtained from either of the males. In other cases, egg is obtained from a donor and fertilised with sperm obtained from either of the partners and the zygote is implanted in the surrogate mother who will gestate the child.

This article analyzes the procreative liberty of gays and lesbians and their right to use assisted reproductive technologies to form families. It argues that all persons, regardless of sexual orientation or marital status, have the right to procreate and to use ARTs when necessary to achieve that goal. The article explains as to why and how barriers preventing access to assisted reproductive technologies by homosexuals should be removed and concludes by making suggestions regarding the same. Part II elucidates how Indian same-sex couples have not been given any rights to access ART as a “couple" under the Bill. Part III establishes the existence of a right to reproduce which encompasses reproduction by means of assisted reproductive technologies thereby bringing assisted reproductive technologies within the scope of Article 21 of the Indian Constitution. Part IV explains the discriminatory consequence of the Bill and argues that all persons, irrespective of their sexual orientation, should be permitted the use of ART. Lastly, Part V examines the constitutional validity of such provisions through the “strict scrutiny" analysis. It proves that concerns such as absence of legal recognition of same-sex couples in India or the quality of gay parenting are irrational and do not form a “compelling interest" on the part of the state to prevent same-sex couples from accessing assisted reproductive technology. PART VI examines laws of countries which have given recognition to procreative liberty of homosexual couples through ARTs.

II.THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL, 2010 AND SAME-SEX COUPLES

The Assisted Reproductive Technology (Regulation) Bill 2010 allows married couples, individuals as well as unmarried couples to have access to various methods of assisted reproductive technologies in India [6] . However, despite its liberal approach, homosexual couples in India have been barred from using ARTs.

“Unmarried Couple", according to the Bill, means two persons of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country or countries of which they are citizens. [7] By ruling that section 377 of the Indian Penal Code was violative of Articles 14, 15 and 21 of the Indian Constitution, the High Court of Delhi in Naz Foundation case, decriminalised consensual sexual acts in India [8] . The decision relied on foreign references, not only from the United States of America and the United Kingdom, but also from Hong Kong, Fiji and Nepal destroying the notion that “gay rights" are a Western concept. However, homosexual relationships are yet to be legalised in India and thus, Indian same-sex couples are excluded from the ambit of an “unmarried couple" as defined by the ART Bill.

The Bill also allows an individual to opt for assisted reproductive technology methods giving him or her complete parentage rights over the commissioned child. It might be contended that by permitting individuals to have access to ART, the bill gives same-sex couples in India an opportunity to be parents. If a same-sex couple in India- X and Y- decides to have a child by means of ART and X, as an “individual" under the ART Bill, commissions a child, only X shall be recognised as the legal parent [9] and Y would have no legal rights over the child. Y may be unable to consent to medical care, meet with school officials, or represent the child’s interests to various government agencies.  Most importantly, Y’s position is most perilous if the relationship between them ends. Y is legally unrelated to the child and has no right to any continuing contact with the child. The relationship between the two may end because they decide to separate. If they do so, they may be unable to agree on dividing childcare responsibilities. When they litigate for custody, X begins with an overwhelming advantage over Y [10] .  This is because of the general rule that a court prefers a parent or a natural guardian [11] to a non-parent in a custody matter.

In certain states of America [12] , “second parent adoption" is enabled whereby a legally recognized parent’s committed partner may adopt and become a co-parent of the child. [13] It is the legal recognition of the parental relationship between a homosexual and her partner’s biological or adopted child, without termination of the partner’s already legally recognized parental rights. Second parent adoption does not require the legal parent to be married to the party seeking to adopt the child [14] . Thus, by second-parent adoption, both partners of a same sex couple, who cannot marry in most jurisdictions, can be legal parents of the child.

However, for Indian same-sex couples, adoption by the other partner is not a plausible option. For example, if both the partners are Hindus, according to the Hindu Adoption and Maintenance Act, 1956 the child severs all his ties in the family of his birth which are replaced by those created in the adoptive family. [15] Since, same sex couples in India are not married or otherwise in any form of legal relationship, the effect of adoption by one partner would not create ties between the child and the other partner. There are no statutory provisions for a second parent adoption in India.

Thus the Bill does not allow same-sex couples in India to have a child of whom both partners are legal parents. It has been said that the Bill is liberal in the sense that it allows homosexuals to have children by means of ART as individuals and leaves further scope for same-sex couples to have children by ART once their relationship is legalised in India [16] . Yet, at issue is a denial of a right rather than a mere delay in when the right can be exercised, and thus “critical examination" is required.  [17] 

III. IS THERE A RIGHT TO ASSISTED REPRODUCTIVE TECHNOLOGIES?

To establish a right to assisted reproductive technologies, it needs to be determined if there exists a “right to reproduce"- at all-and whether such a right encompasses the assistance of new technologies.

The right to reproduce can be regarded as a moral right as well as a legal right. [18] John Robertson, deriving the moral right from dignity, states that the decision about reproduction best captures “the importance of procreative liberty" since “control over whether one reproduces or not is central to personal identity, to dignity, and to the meaning of one’s life".  One’s self-definition, he explains, can be affected in the most basic sense when deprived of the ability to avoid reproduction, impacting upon one’s “psychological and social identity and one’s social and moral responsibilities". Further, a disability to reproduce, Robertson remarks, “prevents one from an experience that is central to individual identity and meaning in life", and its denial, whether through infertility or external restriction, “is experienced as a great loss" [19] . As, Roger Chin puts it, it seems extreme to question the choice of any two people to have a child. [20] 

Legally, on the other hand, the right to reproduce traditionally finds its origin in the right to found a family. The Universal Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR), 1976 by Article 16 and Article 23(2) respectively, give “men and women of full age" the right to found a family.

Scholars may contend that the draftsmen of the UDHR or ICCPR never intended to include families of same-sex couples within the meaning of “family" as provided under these articles. However, such an argument is refutable and non conclusive since scopes of various provisions have been enlarged according to changing times and development of new technologies. Further, political, social and economic changes might bring about recognition of new rights and the law to meet social demands. [21] 

The House of Lords, in Fitzpatrick v Sterling Housing Association Ltd. [22] , stating that the concept of family had undergone a change, both in the United Kingdom and overseas, held as follows:

Social groupings have come to take a number of different forms. The form of the single parent family has been long recognised. A more open acceptance of differences in sexuality allows a greater recognition of the possibility of domestic groupings of partners of the same sex. The formal bond of marriage is now far from being a significant criterion for the existence of a family unit. While it remains as a particular formalisation of the relationship between heterosexual couples, family units may now be recognised to exist both where the principal members are in a heterosexual relationship and where they are in a homosexual or lesbian relationship. [23] 

The right to found a family has also been laid down by the Yogyakarta Principles [24] on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity. Principle 24 clearly states that every person has a right to found a family irrespective of his or her sexual orientation or gender identity and that no family should be subject discrimination based on the sexual orientation of its members. [25] 

Thus, keeping in view the changes in societal patterns, families of same-sex couples should be read within the scope of “family" as provided in the UDHR and ICCPR. Impliedly, same-sex couples, as per the two conventions, have a right to found a family which includes the right to procreate.

In the contemporary scenario, however, right to reproduce is encompassed within the right of privacy-a facet of Article 21 of the Indian Constitution. [26] Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. [27] In R. Rajagopal v State of T.N. [28] , the Supreme Court held the right to privacy is “the right to be left alone". The two-judge bench stated that a citizen had a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. [29] Construing this right to be left alone in matters of procreation, state’s interference or restrictions on procreation would be a direct encroachment on one’s privacy.

Further establishing this principle, the High Court of Andhra Pradesh in B.K. Parthasarthi v State of AP [30] held that there is a right to make a decision about reproduction and such a right is very personal on the part of every man or woman. The court further proceeded to state that such a right “includes the right not to produce" [31] . The use of “includes" by the court brings forth an obvious implication that the decision as to reproduction could be negative as well as an affirmative. Thus the High Court of Andhra Pradesh expressly established the right of “reproductive autonomy" and held that it was a part of right to privacy. [32] 

The High Court of Andhra Pradesh, in the judgement, concurred with the right to reproductive autonomy as established in America through a line of cases, though mainly in dicta. In T. Skinner v State of Oklahoma [33] , the US Supreme Court characterised the right to reproduce as “one of the basic civil rights of man" [34] . Further, by striking down a law that regulated the distribution of contraceptives because it discriminated between married and single persons, the Supreme Court of United States in Eisenstadt v Baird [35] established a fundamental right to “bear or beget a child" [36] .

The next question that follows is whether this right to reproductive autonomy implies a right to reproduce with the help of various reproductive technologies or does the use of a doctor, petri dish or other technology in the process of reproduction render it any less of a right? An act of procreation refers to a voluntary act taken by an individual that is either one of the two most proximate causes of the conception of a future person or persons, with such person or persons eventually being born.   A couple that enters into a surrogacy contract and bears no biological relationship to the resulting child, but whose acts might be considered the proximate cause of its conception and birth, has arguably procreated. The relevant consideration is whether a person or persons have voluntarily acted to cause the creation of another being, and those actions have resulted in the birth of a child. [37] 

Thus, if the Constitution protects coital reproduction from state interference, there are strong grounds for concluding that it would protect non-coital techniques involving the couple’s own gametes to the same extent as their efforts to reproduce coitally.  [38] 

Moreover, the courts have protected the right to use contraceptives [39] and the right to abortion [40] as a part of the right to reproductive autonomy. If the courts have sheltered the right not to produce a child by employment of technologies that are not natural, it would be irrational to state that the right to bear a child extends to only fertile couples and by employment of coital means and does not include the right to assisted reproductive technologies. Applying a similar logic, the district court of Illinois, in Lifchez v. Hartigan [41] , held that “it takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy." [42] 

Thus, it would not be unwarranted to construe that the right to reproduce includes the right to assisted reproductive technology. Since the right to reproductive autonomy is a part of the right to privacy- an important facet of Article 21 of the Constitution- it can be inferred, by the doctrine of implied Fundamental Rights [43] , that this right to assisted reproductive technologies is a fundamental right in itself.

IV. NON-DISCRIMINATORY ANALYSIS

Article 14 of the Indian Constitution guarantees to Indian citizens “equal protection of laws" and Article 15 prohibits the State from discriminating between individuals “on grounds of religion, race, caste, sex, place of birth or any of them."

Indirect discrimination occurs when a provision puts persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons. [44] The path breaking Naz Foundation [45] judgement established that discrimination against individuals on the ground of their sexual behaviour is analogous to “sex" under Article 15 and was thus prohibited. [46] Thus, when the Bill disadvantages same-sex couples as compared to heterosexual couples by allowing married heterosexuals to access ART and not granting access to the same to unmarried same-sex couples, it indirectly discriminates against homosexuals. The consequences of discrimination have been stated by John Gardener as followed:

Discrimination on the basis of our immutable status tends to deny us life. Its result is that our further choices are constrained not mainly by our own choices, but by the choices of others. Because these choices of others are based on our immutable status, our own choices can make no difference to them. …. And discrimination on the ground of fundamental choices can be wrongful by the same token. To lead an autonomous life we need an adequate range of valuable options throughout that life…. there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others. [47] 

As explained above, since there exists a right to ARTs when infertile, it is unlikely to limit such a right to persons who are married since a person’s interest in reproduction exists independently of marriage [48] It cannot be denied that homosexuals too may have strong desires to have or care for offspring.  They too have been brought up in families and in a society that identifies having and rearing children as an important source of meaning and fulfilment. [49] The Model Assisted Reproductive Technology Act [50] prohibits restrictions on grounds of sexual orientation as well. [51] 

The State might argue that such discrimination is permitted since the possibility of same-sex couples having children is impossible and unnatural. If that might be the case, then the State cannot, in the case of married infertile heterosexuals, aid them in having children by ART. Since nature has not equipped such heterosexuals to reproduce, then the state should not interfere with nature by assisting them to do so. [52] However, if it does, there seems to be no comprehendible reason as to why it should not aid same-sex couples as well.

Moreover, certain countries like Belgium [53] , Canada [54] , Netherlands [55] , Iceland [56] , South Africa [57] , Spain [58] , Sweden [59] and certain states of America like Iowa, Columbia recognise same-sex marriages. Thus, same-sex couples who are citizens of such countries can legally opt for assisted reproductive technologies in India since the Bill allows a married couple [60] whose marriage is legal in the country or countries of which they are citizens to opt for ARTs. Another conspicuous feature of the Bill is that it allows “unmarried couples" constituting two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country or countries of which they are citizens [61] to have children by means of assisted reproductive technologies [62] . Such legal relationships include “civil union", registered partnership" and their likes in countries such as Denmark [63] ,United Kingdom [64] , Austria [65] , Germany [66] , France [67] , Iceland [68] and the states of California, New Jersey in the United States. The consequence is clearly discriminatory and unwarranted against same-sex couples in India.

Consequently, the Bill not only discriminates between married heterosexuals and same-sex couples, but also discriminates between Indian same-sex couples and their counterparts in countries that have granted legal recognition to homosexual relationships. The reason for the same, however, is unconvincing.

V. STRICT SCRUTINY ANALYSIS

As concluded above, the right to assisted reproductive technologies is a fundamental right within the meaning of Article 21 of the Indian Constitution. Also, the Constitution of India, by virtue of Article 14, guarantees to its citizens the fundamental right of “equality before the law" and “equal protection of the laws". However, the Bill discriminates between Indian same-sex couples and married heterosexuals thereby classifying couples on the basis of their sexual orientation.

Where a classification burdens a fundamental interest, to determine its constitutional validity, it should be subject to strict scrutiny on equal protection grounds.  [69] A measure that disadvantages a vulnerable group, defined on the basis of a characteristic that relates to personal autonomy must not be only tested on grounds of “reasonableness" but must be subject to strict scrutiny. [70] 

The Strict Scrutiny Analysis was established in T. Skinner v. State of Oklahoma [71] which involved the validity of statute providing for the mandatory sterilization of some, but not other, three-time felons. Justice Douglas stated that the statute could survive the highly deferential rational basis review normally applied under the Equal Protection Clause of the American Constitution. Thus, the court held that rational basis review was inappropriate, because the challenged statute infringed upon the right to procreate--“one of the basic civil rights of man" that was “fundamental to the very existence and survival of the race." In place of rational basis review, “strict scrutiny of the classification which a State makes in a sterilization law is essential," the Court said, “lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws." [72] 

The Strict Scrutiny Analysis entails a two-pronged scrutiny:

(a) The legislative interference should be justified in principle,

(b) The same should be proportionate in measure. [73] 

The scrutiny implies that “any classification which serves to penalize the exercise of [a fundamental constitutional] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." [74] 

In the given case, the ART Bill 2010 must be subject to strict scrutiny analysis since it “disadvantages" same-sex couples by disallowing them to exercise their right to reproduce on grounds of their sexual orientation. Consequently there should be a “compelling interest", justified in principle for same-couples in India to be disallowed access to ART.

A. ABSENCE OF A LEGAL RELATIONSHIP

Dr. Sharma, member secretary of the twelve member committee that drafted the ART Bill stated that though consensual sexual acts have been decriminalised in India, homosexual relationships has not been made legal. Thus, till gay and lesbian couples get legal status in India, they cannot avail surrogacy.  [75] 

According to the drafters, the fact that same-sex couples have not been given any legal recognition in India is the reason as to why they have not been given the right to ARTs. However, the statement is contradicting. There does not seem to be much litigation in India regarding same-sex marriage. In America, however, courts have often held that the reason why same-sex couples have been denied the right to marry is their disability to have children. The Court, in Singer v Hara [76] , rejected homosexual marriage on the ground that the state’s recognition of marriage was based on its interest in procreation and it was apparent that no same-sex couples offered the possibility of the birth of children by their union. [77] One of the important features of marriage, courts have held, is that it provides a setting in which child-rearing can take place. [78] 

Assisted Reproductive technologies allow same-sex couples to have children, furthering state’s interest in marriage. ARTs, thus, bridges the gap between same-sex couples and homosexual couples partly. Hence, it seems ironical that legislators would deny same-sex couples the right to reproduce on grounds of absence of legal recognition of their relationship in the form of marriage or otherwise. Thus, a law limiting ARTs to married persons or to heterosexual persons should fail because it would treat the very same act-the use of a particular technology-differently based upon the marital status or sexual preference of the persons involved, with no real basis for the distinction other than societal disapproval or prejudice. [79] 

The court, in Morrison v Sadler [80] , offered a better and more convincing answer to the requirement of legal recognition of same-sex couples. The court noted that:

There is a key difference between how most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through [adoption] or assisted reproduction. Becoming a parent by using ‘artificial’ reproduction methods is frequently costly and time-consuming..... Those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes. Those processes also require a great deal of foresight and planning. ‘Natural’ procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All that is required is one instance of sexual intercourse with a man for a woman to become pregnant. [81] 

The court noted the state’s “clear interest in seeing that children are raised in stable environments" and then suggested that individuals opting for assisted reproduction or adoption may be seen as very likely to be able to provide such an environment, with or without the ‘protections’ of marriage, because of the high level of financial and emotional commitment exerted in conceiving or adopting a child or children in the first place. [82] Thus, it seems unnecessary that there should be a requirement of legal recognition of same-sex couples for them to have an access to Assisted Reproductive Technologies and it is difficult to see any “compelling" interest of the State in this regard.

B. THE INTERESTS OF THE CHILD

The other possible State interest could be with regard to the quality of gay parenting as well as the sexual orientation of children of homosexuals. Usually opponents rest their opposition to gay and lesbian reproduction on concerns about the welfare of offspring raised by gay or lesbian parents. In taking that position they assume, without actual evidence, that a gay or lesbian sexual orientation in parents is not good for children. [83] However, statistics regarding the same do not give rise to any concern. [84] The American Psychological Association has concluded that children raised by gay parents are not “disadvantaged in any significant respect relative to children of heterosexual parents." [85]   On the contrary, the results of some studies suggest that lesbian mothers’ and gay fathers’ parenting skills may be superior to those of matched heterosexual couples. [86] Also, a number of studies report that the great majority of offspring of both lesbian mothers and gay fathers described themselves as heterosexual. [87] Further, “the non-identity problem" characterised by Derek Parfit states that even if we allow for the sake of argument that it would be preferable for all children to be reared in a heterosexual married setting, children born with the high likelihood of being raised outside that setting are not harmed by that fact alone because the children in question would not exist unless they were brought into the world by the gay or lesbian individuals or couples who rear them, they are not harmed simply because they have been born into what some have claimed to be less than optimal circumstances. [88] If a state seeks to restrict ARTs solely to those who prove themselves to be suitable parents and satisfy additional requirements, as in the adoption context, then these requirements must apply equally to all. [89] 

While considering extending assisted reproductive technologies to a lesbian couple, former Prime Minister of Australia, John Howard, explained that “this issue primarily involves the fundamental right of a child within our society to have a reasonable expectation, other things being equal of the care and affection of both a mother and a father." Such a notion seeks support from international conventions governing rights of child. However, as explained by Ruth McNair, this position is untenable under international law [90] . Article 18(1) of the United Nations Convention of the Rights of Child, 1989 provides that parents have primary responsibility for the upbringing and development of a child while article 27(2) states that parent(s) have the primary responsibility to secure the conditions of living necessary for a child’s development. However, there is nothing in the drafting history of the Convention to suggest that the term ‘parents’ was ever to be defined or confined to a man and woman. The Committee on Rights of Child has stated that it would seem hard to argue for a single notion of a family. [91]  

 As observed by Nevins J in the Canadian case of Re K  [92]  , it is the capacity of its members to ensure the “healthy development of a child through the provision a stable, consistent, warm and responsive relationship between a child and his or her care giver" that is of central concern. Thus, extending the right of assisted reproductive technologies to same-sex couples would not, prima facie, be against the best interests of the child.

C. SOCIETAL NORMS

Social restrictions attached to same-sex parenting could also be seen as a potential reason. However, popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21 of the Indian Constitution. [93] 

Therefore, it seems difficult to establish a “compelling state interest" in light of which same-sex couples could be regarded less deserving to have parental rights. The only limitations on homosexuals’ “ability to perform or contribute to society" come from society itself: laws, moral traditions and general ignorance which prevent homosexuals from living openly, raising families, and otherwise contributing to society. [94] 

Hence, the ART Bill fails the strict scrutiny analysis so far as it denies same-sex couples in India the right to reproduce under Article 21 by means of Assisted Reproductive Technologies and is thus, unconstitutional.

VI. INTERNATIONAL PERSPECTIVE

Several countries have extended parental rights to same- sex couples. The Supreme Court of California in Elisa B. v Superior Court [95] , acknowledged parental rights and obligations of both mothers in a same sex- relationship who had commissioned the child. The court could not perceive any reason as to why both parents of a child cannot be women. [96] 

The United Kingdom specifically lays down provisions granting lesbian couples the right to assisted reproductive technologies. Section 42 of the Human Fertilisation and Embryology Act, 2008 gives a woman, who is in a “civil partnership" with another woman at the time the woman is being artificially inseminated, rights of a parent unless she did not consent to the artificial insemination. Further, under section 43, provision is made for lesbians who are not civil partners in United Kingdom to be legal parents of a child, if no man is treated as the father of the child and no woman is treated by virtue of the section 42 as a parent of the child.

Similar provisions have been codified under the Assisted Reproductive Treatment Act, 2008 of Victoria, Australia. The Act under section 3 of Part I defines partner to include a person who lives with another “as a couple on a genuine domestic basis, irrespective of gender". Under section 13 of Part III, the woman’s female partner is presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy if she was the woman’s female partner when the woman underwent the procedure as a result of which she became pregnant and consented to the procedure as a result of which the woman became pregnant. Thus the Victorian Assisted Reproductive Treatment Act also extends benefits of ARTs to female same-sex couples living together.

Further, the Parliament of Canada, through the Assisted Human Reproduction Act, 2004, declared that persons who seek to undergo assisted reproduction procedures must not be discriminated against, including discrimination on the basis of their sexual orientation or marital status.

VII. CONCLUSION

The cause of homosexual behaviour is unknown and the question whether it is a choice is yet unanswered. It has been said to be a result of various factors including biological and psychological causes. Given to the fact that homosexuality is not a question of choice, it is difficult to comprehend any reasonable basis for the denial of assisted reproductive technologies to homosexual couples. Assuming that homosexuality was a question of choice, there still will be a lack of justification as to why homosexuals must be discriminated so, since human dignity recognises a person’s autonomy of the private will and freedom of choice and action. Limits upon individual liberty and autonomy should be meted out with a measure of equality.

Consequently, same-sex couples should not be deprived of the human need of bonding that the Constitution has afforded to their heterosexual counterparts. Thus, the Assisted Reproductive Technologies (Regulation) Bill, 2010, because it classifies couples on the basis of sexual orientation, violates the constitutional guarantee of equality provided under Article 14 of the Indian Constitution. The Article has elucidated on the absence of a compelling state interest on part of the State to draw lines between homosexual and heterosexual couples in India with regard to assisted reproductive technology.

It is recommended that section 2(v) of the Bill be altered so as to include explicitly same-sex couples in India thereby permitting them to employ assisted reproductive technologies. Alternatively the Bill could provide for recognition of court decrees that allow a committed homosexual partner of the individual employing ARTs to be recognised as the legal parent of the child as well. Provisions enabling second parent adoption, as explained above, would also remove the barriers of homosexual couples to procreate. Such provisions will enable children to have, in the case of same-sex couples, two legal parents, thus furthering the interest of the State in child welfare. However, this should not be the be all and end all of it- consequent legislations should be passed recognising the relationship between same-sex couples, identifying family units where principal members are homosexuals and giving them rights similar to heterosexual couples.