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Whose baby is it anyway?

Marriage is no longer the prism that defines relationships. Then why should single people be denied the right to have children?

Illustration by Jayachandran/Mint
Illustration by Jayachandran/Mint

There was a time when convention dictated every aspect of life. Its rule was absolute. The past decade, however, has dealt some huge blows to its standing, with political movements like feminism and gay rights becoming more and more mainstream. Lifestyles have evolved, as have life choices. Traditional notions of womanhood, marriage, relationships are changing. Or, are they?

In August, Union external affairs minister Sushma Swaraj paid a surprise visit during a routine press briefing on cabinet decisions. She was there to talk about the draft Surrogacy (Regulation) Bill, 2016. “Keeping in mind the seriousness of the issue (surrogacy), the Prime Minister had instituted a group of ministers of which I was the chairperson," she began. It was never going to be an easy announcement, the banning of commercial surrogacy, a business estimated at more than $400 million (around Rs2,670 crore) a year, but Swaraj added fuel to the fire with her announcement that only legally wedded couples, a man and a woman who had been together for more than five years, she specified, would be able to avail of “altruistic surrogacy". The minister then went on to specify that “single parents, unmarried, live-in relationships, homosexuals" would not be “allowed" to avail of altruistic surrogacy.

It was a statement bound to raise hackles, and it did. There were concerns about the government trying to police bodies while others spoke of how the Bill violated constitutional provisions. In an editorial for The Indian Express last year, lawyer Anil Malhotra argued that “constitutionally, the state cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy".

The Bill was introduced in the Lok Sabha by health minister J.P. Nadda in November, and referred to a standing committee on 12 January. The report is expected to be submitted within three months, so there is a chance it could be discussed in the Parliament session starting 9 March.

The Bill, in its initial form, seems to betray a lack of knowledge of the situation on the ground. Relationships in India are no longer defined through the narrow prism of marriage; in fact, the very categories that Swaraj stressed were “not allowed" to avail of surrogacy now form a substantial chunk of society, be it single parents or gay couples. In 2012, in fact, the government told the Supreme Court there were 2.5 million gay people in India. The figures had been compiled by India’s National Aids Control Organization.

Prathap N. is a freelance writer who has been in a committed relationship with another man for nine years. Earlier this year, they solemnized their relationship by exchanging vows in Europe. “When we lived together in Bengaluru, our neighbours used to think we were roommates. It would have been nice to tell everyone that we are a couple but that wasn’t possible. The conservative morals exemplified in the acceptance of heterosexual couples are never going to change. The government’s definition of marriage only reinforces this," he says.

Prathap isn’t hopeful, though there have been signs that acceptance of all kinds of relationships is evolving. In April 2015, the Supreme Court ruled that any couple who had been living together for a long time would be presumed to be legally married, unless proved otherwise. The conversation about LGBT (lesbian, gay, bisexual and transgender) rights is as vibrant as the multiple pride parades that take place across the country now and there has been a landmark Supreme Court judgement vis-à-vis the rights of the transgender community. According to Prof. Tulsi Patel, a sociologist from Delhi University, the notion that the only union fit for parenting is the traditional marital one is a very “upper-caste notion of relationships and motherhood. These, in turn, are because of heteronormative constructs of paternity and maternity."

Single, with a child

India allows single people, both men and women, to adopt, though the former are not allowed to adopt girls. Seventeen years ago, actor and former Miss Universe Sushmita Sen made headlines when she adopted a baby girl. Sen was opting to be a single mother.

Two years earlier, Nanki Hans, a senior journalist with The Tribune newspaper, Chandigarh, disregarded convention when she had a biological child, as a single woman. “I am an only child and I needed a blood relation. And I wanted my own child." Hans opted for in-vitro fertilization (IVF) treatment in London where her mother was working. She argues that if an individual is educated, pays taxes, and contributes to the growth of the nation, then why should she be denied the right to an heir? “Procreation is a natural right. When you deny it to an individual , then it is an infringement."

Hans may have undergone treatment in the UK but she faced hurdles back home, especially as far as the paperwork was concerned. At one point, her son’s school wanted the father’s name for the CBSE form for class X examinations, and it continued to be an issue even after she submitted her IVF documents. Today, it is no longer mandatory to provide the father’s name in the form.

By the time Kolkata-based artist Eleena Banik decided to have a biological child as a single woman, assisted reproductive technology (ART) had become a well-established field in India. “Women should be able to choose how they want to become a mother," says Banik, who gave birth to a girl in 2012, despite challenges in getting permissions.

Even single men have opted for ART to become fathers. The most well-known case, perhaps, is that of Tusshar Kapoor, the 40-year-old actor who became a father in June last year.

Banik argues that it’s ridiculous to expect single parents to put their dreams of a family on hold just because they haven’t found the right partner. “I wanted to have a child of my own but wasn’t keen to get married," she says. A painter, Banik has been married once but says she did not have a baby then because she was just not “convinced" about her partner.

ART clinics are governed by Indian Council of Medical Research guidelines which do not specify who is fit to be a parent and who is not. Even so, Banik would face refusal each time her single status became known.

Changing realities

If mindsets can be a problem, an even more intractable one can be government-mandated paperwork, as Hans learnt. Even that, however, is changing.

Recently, the external affairs ministry updated its passport rules, with the father’s name no longer mandatory.

Government census data too reflects changing ground realities. There has been a 39% increase in the number of single women in India between 2001 and 2011. There are 71.4 million single women, though this count includes not just those unmarried but also those divorced, widowed or deserted by their husbands. The census also reveals that the mean age for women getting married has increased from 18.3 years to 19.3, while for men it is now 23.3, up a few points from 22.6 in 2001.

“In purely personal terms, I can tell you that times have changed. I did not face problems, when it came to people around me, after I decided to walk out of my marriage in 2001. However, when an aunt did the same years ago, a large part of society was not supportive," says Rachna Kalra, who used to work with a publishing house in Delhi. Kalra, who separated from her husband in 2001, says there are many people in her peer group who are single. Some chose to walk out of bad marriages, some never got married—it’s not a pattern she sees in her mother’s group of friends.

For those who do choose to defy convention, there are several factors that come in handy, not least of which are a supportive family set-up, education and, of course, economic independence.

Hans, for instance, is categorical that the support from her parents made her exceptionally lucky. “It is a mix of factors: Economic independence is very important. Also, the massive global communication village we live in, it is impossible to not be influenced or informed by international changes," says Prof. Patel.

A big agent of change vis-à-vis mindsets can be popular culture. In 2015, The Atlantic did a piece analysing the impact of Modern Family, a US sitcom which features, among others, a gay couple, Cameron and Mitchell, in playing a role in garnering support for same-sex marriages. The article stated, “A 2012 Hollywood Reporter poll found that 27 per cent of likely voters said that depictions of gay characters on TV made them pro-gay marriage, and there are news accounts of people crediting their newfound sympathy towards gay people to Modern Family."

In India popular culture doesn’t shy away from portraying sexually liberated, financially independent young men and women, but its potential to create long-term change, especially when it comes to relationships, is yet to be harnessed.

India has the world’s largest young population (356 million in the 10-24 age group, according to a 2014 UN report), who are expected to be drivers of the world’s economy in the years to come, but the government still wants to try and tell them whether, and whom, to marry and how to have a child. In an ideal world, the state would not police bodies or have a say in what goes on in bedrooms. In an ideal world, people would have the right to live the way they want to, love whom they desire and have children irrespective of their relationship status. As far as personal liberties go, it’s not much to ask for.

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