Why restrict single women from surrogacy, Delhi HC asks Centre

The Delhi high court directed the union ministry of health and family welfare to file a response in the plea of a woman who challenged the policy of barring unmarried women from undergoing surrogacy

The Delhi High Court on Monday questioned the Centre for its policy of restricting single women from undergoing surrogacy and only allowing widow or divorcee for the same.

The petitioner said that there was no intelligible differentia which could justify the restriction against a single unmarried woman and other single women, who were married before. (Representative Image)

“Why is the marital status criteria for the intending woman? The status after divorce is again that of a single. She’s not having a matrimonial life because she is single,” a bench of chief justice Satish Chandra Sharma and justice Sanjeev Narula asked ministry of health and family welfare’s (ministry) counsel advocate Arunima Dwivedi.

The court also directed Dwivedi to file a response in the plea.

Court was considering a plea filed by a single woman challenging section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 that bars unmarried woman from availing the surrogacy procedure and only permits an Indian woman who is widow or divorcee between the age of 35-45 years to take the benefit of the same. She, in her plea, had said that the definition was highly irrational, unlawful discriminatory and violative to the fundamental rights and there was no intelligible differentia which could justify this restriction against a Single ‘Unmarried Woman’ and other Single Women, who were married before.

“Therefore, the restrictions are wholly discriminatory and without any rational or reason behind it, inasmuch as, the said restriction is not only infringing fundamental rights of the Petitioner, but also violative to the basic human rights of an individual,” the plea stated.

She, in her plea, had also sought for quashing notification dated March 14, 2023 passed by the ministry of amending Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022 of restricting single woman to only use self eggs for availing surrogacy. It was argued that restriction over any intending woman to use her own female gamete was without any medical reasoning or any logic.

“Any intending woman who would reach to its highest age limit as per the Act 2021, i.e., upto 45 years, her female gametes become less effective to surrogacy, being less fertile, and prone to induce the high chances of Down Syndrome and abnormalities in the baby after birth or after an advance age of the child. Therefore, the limitation over the age for an intending woman i.e., 35 to 45 years of age and for any intending couple’s female between 23 to 50 years of age, has a significant role in making any such participation through their female oocytes/eggs to avail the procedure of Surrogacy. Thus, restricting the condition for use of own female gamete to any woman, particularly for single intending woman of such an advance age, as for the case of the Petitioner herein, is discriminatory and frustrating the whole objective of altruistic surrogacy as per the Act 2021,” the plea added.

The petitioner, represented by advocate Bhawana Pandey, submitted before the court that the petitioner’s family was not willing to opt for adoption and she wanted to go for surrogacy but the provisions of the Surrogacy Act and Rules do not allow her to avail the same. She also told the court that using her own eggs for surrogacy would result in her giving birth to an abnormal child.