10 HASTINGS CENTER REPORT January-February 2022 policy and politics I am what I am, so take me as I am!” Quoting these words from Goethe in Navtej Singh Johar v. Union of India in 2018, the Supreme Court of India limited the scope of application of section 377 of the Indian Penal Code and held that same-sex intercourse cannot be criminalized. 1 Section 377 was a colonial-era law that criminal- ized such intercourse as “against the order of nature” and was used to per- secute LGBTQ+ individuals. But that was not all the Court did. Building on previous decisions, the Court provided a rigorous framework to address indi- rect discrimination and ruled that laws that are hostile to individuals based on personal characteristics or traits are un- constitutional. 2 However, three years later, LGBTQ+ citizens continue to face discrimination under Prime Minister Modi’s Hindu nationalist government. 3 Given the status quo, recent legislation concerning reproduction, and the cis- gender, heteropatriarchal, and majori- tarian notions of family that ground the Modi government’s understanding of reproductive rights, the future of such rights for LGBTQ+ citizens in India ap- pears bleak. The Indian Parliament has passed two controversial pieces of legislation that, while not explicitly aimed at the LGBTQ+ population, are clearly de- signed to impede access to reproduc- tive technologies by same-sex couples, single parents, and LGBTQ+ folks: the Artificial Reproductive Technologies (Regulation) Bill, and the Surrogacy (Regulation) Bill. The first of these bills defines artificial reproductive tech- nologies (ARTs) as “all techniques that attempt to obtain a pregnancy by han- dling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the repro- ductive system of a woman.” Under the provisions of the bill, the “commission- ing couple” is defined as an “infertile married couple who approach an as- sisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services authorized of the said clinic or bank.” 4 Similarly, the Surrogacy (Regulation) Bill allows sur- rogacy for couples who have been prov- en infertile, with the following, among other, stipulations: “the couple [are] Indian citizens and married for at least five years” and are “between 23 to 50 years old (wife) and 26 to 55 years old (husband).” 5 At the time of this writing, the bills await assent from the president before becoming law; this is a mere constitutional formality and should be done soon. For two reasons, this heteropatriar- chal, biologically essentialist framing of access to reproductive rights must be opposed. Because the Modi govern- ment could not frame the bills by di- rectly restricting access to LGBTQ+ populations, it did so by sleight of hand. The bills, as they now stand, allow ac- cess only to married couples certified as medically infertile. Such a framing of infertility leaves out queer people who are socially infertile, that is, infertile be- cause their social conditions do not al- low them to have children. Since queer marriage is not recognized under Indian law, an automatic bar prevents those who are not cisgender male-female cou- ples from accessing ARTs or surrogacy. Although the United Nations Office of High Commission for Refugees notes that states must protect and promote reproductive rights, 6 the Indian gov- ernment has failed to do so. In framing marriage as being between only biologi- cal males and females, the government denies recognition to the queer popula- tion in India. The government opposed same-sex marriage before the Delhi High Court on September 13, 2021, on the grounds that it did not conform to the “Indian Family Unit,” 7 yet queer families have long broken with tradi- tional social structures, and these struc- tures must change with the times. The only purpose behind the government’s line of argument is, in my view, to in- duce a moral panic, 8 evoking a strong reaction from people and thereby inhib- iting societal moral change. Historically, LGBTQ+ populations have remained the poster children for social deviance and a threat to traditional family val- ues; the government’s incitement of moral panic inflicts greater harm on these populations. The framing of mar- riage as between a “biological man and a biological woman” 9 also contradicts the ruling in Navtej Singh Johar, which held that “[t]he veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foun- dation of constitutional morality rests upon the recognition of diversity that pervades the society.” A second problem with the bills is that, as written, they allow access to artificial reproductive technologies or surrogacy only for people who are cisgender and heterosexual. In 2014, the Supreme Court of India ruled in National Legal Services Authority v. Union of India that gender identity was an innate part of a person’s iden- tity and that the Constitution of India Te Bleak Future of Reproductive Rights for Queer Indians policy and politics by Rohin Bhatt