Age of biopolitics: Queer exclusion from ART and Surrogacy Acts

Decades after French theorist Michel Foucault examined concepts such as biopower and biopolitics, regulatory frameworks in India seem to be constantly keeping certain groups outside the ambit of protection and legal recognition, writes Kanav Narayan Sahgal.

When French theorist Michel Foucault began researching sexuality in the early 1970s, he set out to examine how power, knowledge, and social institutions shaped sexual behaviour and identity in the Western world, from the 17th century onward. He later published this work as a four-volume series titled ‘The History of Sexuality’ (‘Histoire de la sexualité’). In Volume 1 (published in 1976), he observed:

“Since sexuality was a medical and medicalizable object, one had to try and detect it—as a lesion, a dysfunction, or a symptom—in the depths of the organism, or on the surface of the skin, or among all the signs of behaviour.”

Foucault’s observations eventually laid the groundwork for scholarship that not only revealed how queer bodies were medicalised in the West, but also exposed how legal and medical institutions transformed sexuality into an oppressively regulated field—one subject to constant surveillance, categorisation, and control.

We are now in 2026, and decades later, in a context far removed from the kind Foucault studied, his ideas remain strikingly relevant in India today, as we pay attention to the continued exclusion of queer communities from reproductive options under central government legislation such as the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) and the Surrogacy (Regulation) Act, 2021 (Surrogacy Act).

What do the two Acts say

The ART Act regulates and supervises assisted reproductive technology clinics and banks, while the Surrogacy Act regulates the practice and process of surrogacy by promoting altruistic surrogacy and strictly prohibiting commercial surrogacy. Taken together, these laws aim to establish legal frameworks that regulate a suite of reproductive services and curb unethical practices. But in doing so, they also adopt a narrow legal definition of who can access these procedures, effectively placing same-sex couples and certain single individuals outside the scope of the law.

Under the ART Act, a “commissioning couple” is defined as an infertile married couple, while under the Surrogacy Act, a “couple” is defined as a legally married Indian man and woman above the ages of 21 and 18, respectively. Only those meeting these marital criteria qualify to avail these services.  Given that same-sex couples don’t have a right to marry, they therefore cannot legally access either ART or surrogacy services.

Meanwhile, single women may access surrogacy only if they are widows or divorcees, subject to eligibility, while single men are entirely barred from availing either ART or surrogacy services.

But why these restrictions on same-sex couples? As Foucault vividly observed:

“The legitimate and procreative couple laid down the law. The couple imposed itself as model, enforced the norm, safeguarded the truth, and reserved the right to speak while retaining the principle of secrecy.” 

In essence, Foucault was highlighting how it becomes the task of the state to enforce a dominant normative model—one that centres heterosexual married couples as the standard for legitimate reproduction. Under such a regime, same-sex couples are not merely overlooked but rendered illegible, because their relationships do not fit the procreative template around which the law is structured.

Decolonising laws: rhetoric only?

Therefore, despite all the rhetoric about decolonising laws, India remains tethered to assisted reproductive legislation that reproduces Victorian-era definitions of family. What’s more concerning is the role of medical bodies and regulatory institutions in endorsing these restrictive frameworks.

The ART Act, for instance, originated in the Indian Council of Medical Research (ICMR) draft bill of 2008, while the Surrogacy Act underwent review by Select Parliamentary Committees before formal drafting, amendments, and enactment by the Ministry of Health and Family Welfare (MoHFW).

Although the MoHFW has recently advanced gender-affirming care and integrated health insurance schemes for transgender individuals, same-sex couples remain largely excluded from reproductive services across the country.

Furthermore, in its 2023 same-sex marriage judgement, the Supreme Court upheld India’s adoption laws that barred same-sex couples from adopting, and petitions challenging restrictions under the ART and Surrogacy Acts for transgender individuals are currently pending before the Kerala High Court and the Supreme Court respectively. However, these petitions do not confront the broader exclusion of sexual minorities, so even a favourable ruling would offer only piecemeal relief. Therefore, if we are really serious about decolonising our laws, our assisted reproductive policy frameworks need to adopt a holistic understanding of family that is aligned with contemporary conceptions of gender and sexuality.

Excluding same-sex couples, single persons, live-in heterosexual couples and transgender persons from these services not only violates their fundamental rights but also leaves us governed by what Foucault famously described as an era of “biopolitics”—regulatory frameworks that constantly monitor, categorise, and discipline select populations based on state-sanctioned norms of reproduction, family, and ethics in ways that specifically leave other groups systematically outside the ambit of legal recognition and protection.

Transgender Persons Act (2019): Fresh proposals

Meanwhile, yet another development that has generated debate is the proposed amendments to the Transgender Persons (Protection of Rights) Act (2019). This intends to tear down the promise of gender self-identification as laid out in the 2014 NALSA judgement (National Legal Services Authority vs Union of India). The proposed amendments limit who gets to be counted as “transgender,” and how that counting is to be determined.

(The author is a communications manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])