January 22, 2025

While talking about the new Surrogacy Bill, Sushma Swaraj chose to lecture the nation on what she called the “ethos” of India. Now ethos is defined as “the characteristic spirit of a culture, era or community as manifested in its attitudes and aspirations” or “the fundamental character or spirit of a culture; the underlying sentiment that informs the beliefs, customs, or practices of a group or society; dominant assumptions of a people or period.” The way Swaraj chose to put it; ethos would mean something that is fixed or rigid. That is a very narrow view of the meaning. Ethos is linked to social thought and mores and keeps evolving with time. England will not now make laws by invoking the Victorian ethos. Similarly, India cannot make laws by invoking Vedic era or even pre-Independence era ethos. The beliefs, customs, practices, attitudes and aspirations of Indians have under gone a sea-change in the last few decades and any law has to take that into consideration. Prejudice has no place in society as it only holds it back.

Having said this, one cannot dispute the right of the government to ban commercial surrogacy. Its right to regulate the practice cannot also be denied. Commercial surrogacy is banned in many nations across the world. What is being disputed is the fact that one cannot make laws by being judgmental. The way the bill has been drafted, it seeks to force matrimony down the throat of unwilling people if they want to have children through the surrogacy route. Swaraj was unequivocal in saying that she does not recognize the rights of singles, homosexuals or live-in partners wishing to raise a child through this route. At the same time, blood relatives are allowed to bear the surrogate child of childless and married couples (who have been married for five years or more) whose medical reports prove infertility. But what if a single or homosexual man or woman wants to do the same through a blood relative? That, according to Swaraj, is against Indian cultural ethos and will not be allowed.

This government is taking social prejudice to another level altogether by trying to crush the rights of sexually or socially different people like homosexuals, singles and live-ins. One has to be like the majority – meaning straight and married – to get accepted in the society this government wants to create. But that is a Utopian dream. There will always be people who are different from the majority. Society has to respect their views and provide for their well-being. It does not pay to create a social order that further marginalizes these people. It does not also pay to make laws that do not factor in the attitudes and aspirations of a minority that does not accept conventional – but fast changing – social mores of the day.