Singleton And Motherhood: The Surrogacy Act Says—No

In the times that ‘Commercial Surrogacy’ was not banned in the country, the annual turnover of the surrogacy market in the year 2012 was estimated to have been worth as much as 2.5 billion USD.  Estimates state that of the approximately 25,000 surrogate children born in India every year, at least 50 per cent were for couples from the Western world. The times of this intense commercialisation had however put a lot of women in pain and agony for the sake of petty earnings.

Being a member and personally involved in the meetings and discussions on the Surrogacy Bill held by the Department Related Parliamentary Standing Committee on Health and Family Welfare under the Rajya Sabha, Parliament of India - I remember emphasising on the urgent need of the hour to regulate the surrogacy industry. In my opinion and as advocated before the Standing Committee, a blanket ban has a potential of causing further exploitation in any given industry and legislation only paves way for betterment. Surrogacy is one such journey which is not only a medical procedure but is an extremely personal and emotional journey for the parties involved. Therefore the level of exploitation can be significant and painful.  

Undoubtedly the Assisted Reproductive Technologies (ART) methods are not only recognised widely in today’s time but are also being readily accepted as a suitable alternative to natural birth. As a society we are valuing the virtues of equality and joy of motherhood, eradicating the social stigma attached to it.  

With the passing of the Surrogacy (Reproductive) Technology Act, 2021 and the mainstreaming of the procedure of ‘Surrogacy’, we have come a long way in eradicating the social stigma however are now witnessing waves of discussion and debates on its eligibility criteria. If Surrogacy confirms as an acceptable alternative, do men and women of all nature, status and gender affiliation should have the right to make use of the procedure as an alternative to natural births.  

Initiating one such discussion, a writ petition has been filed by advocate Neeha Nagpal before the Supreme Court in November 2023, challenging the notification dated 14.09.2023 and certain provisions of the Surrogacy (Regulation) Act, 2021 being violative of Article 14 and 21 of the Constitution.  

Section 2(1) of the Surrogacy Regulation Act, 2021 defines “Intending women” as an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy. This means that in either situation of eligibility, the intending woman has to prove a previous marital tie.  

The Petitioner has a diabetic condition and is approximately 40 years of age and has been informed that pregnancies above 36 years of age are termed as geriatric pregnancies and involve complications especially in diabetic patients, however can not take the aid of Surrogacy as she is a single unmarried woman.  

The question we are thus faced is “Why is marital status,  a criteria for the intending woman?”, which has also been asked by a bench of the then Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula of the High Court of Delhi emphasising that the same is discriminatory in nature and remarked that “The status after divorce is again that of a single. She’s not having a matrimonial life because she is single,”  

Section 2(1) of the Surrogacy Regulation Act, 2021 defines “Intending women” as an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy. This means that in either situation of eligibility, the intending woman has to prove a previous marital tie.  

The right to reproduction and motherhood has been recognised by the Hon’ble Apex Court of this country and extends not only to reproduction by way of natural conception. However, is the right to procreate contingent on the right to establish a marital relationship? If so, would it be right to say that to exercise the right of motherhood through surrogacy, one is helpless but to sacrifice her choice to marry? If yes, then is one’s right to reproductive autonomy under Article 21 of the Constitution of India under threat.

Interestingly, there is no restriction on a single, unmarried woman adopting a child or having a child out of wedlock. In that event, what shall be the difference between unmarried and divorced or unmarried women, as both classes of women are single and if they were allowed to avail surrogacy, they would yet be single mothers. Then, is the denial to unmarried women of the right to surrogacy, an infringement of their right to equality under Article 14 of the Constitution of India as such differential treatment lacks a reasonable basis?

The petition pending before the Hon’ble Apex Court further states that Article 21 of the Constitution of India includes right to reproduction, right to meaningful family life and right to privacy and restricting the facility of surrogacy only to divorced and widowed women is violative of Article 21 as well as Article 14 of the Constitution of India. The Apex Court has issued notice and sought the response of the Central Government in the matter.  

The matter is sub-judice and the concerns yet to be answered but as a lawyer with experience in the field having worked with IVF Clinics for over a decade, I strongly believe that in order to ensure inclusiveness and longer lifelines of legislations, we must draft laws which are ahead of time as the norms and acceptance of our society is ever changing and ever evolving.  

In the words of Dr. Manika Khanna, Founder of Gaudium IVF Fertility Clinic, “An unmarried woman is as human as a married one so it's logical that she should have the basic human right to procreate . If she has a medical health issue which makes it unsafe for her to carry a pregnancy she should be allowed to use the science of surrogacy to become a mother”.