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Supreme Court seeks Centre’s response on denial of surrogacy to unmarried woman
The petitioner said she has frozen her eggs and the law by restricting surrogacy to only those women who have ever been married violates her right to privacy
New Delhi: The Supreme Court on Tuesday sought the Centre’s response to a petition filed by an unmarried woman challenging the law, which bars single, unmarried woman from availing surrogacy.
A bench of justices BV Nagarathna and Ujjal Bhuyan issued a notice to the Centre on a petition filed by a practising lawyer Neeha Nagpal who said that the law impacts the right to reproduction and motherhood of a woman and denies them right to have a meaningful family life.
Senior advocate Saurabh Kirpal appearing for the petitioner told the Court that Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 allows only divorced or widowed woman to avail of surrogacy. The petitioner who is aged about 40 years is diabetic and has been informed that a pregnancy would involve complications.
Kirpal said, “The Act by restricting surrogacy to only those women who have ever been married even though they may now be divorced or widowed violates the petitioner’s right to privacy. There is no rational nexus between imposition of this requirement of having once been married with the object of the Act which is solely to prevent commercial surrogacy.”
He said that the Government may consider this challenge to the law and file its response as surrogacy is the only viable option available to the petitioner for having a child and family of her own.
He said, “An unmarried woman has a right to reproduction and motherhood even without entering a marriage. Section 2(1)(s) of the Act is manifestly arbitrary and irrational as there is no restriction on a single, unmarried woman adopting a child or having a child out of wedlock.”
Also Read: Why restrict single women from surrogacy, Delhi HC asks Centre
Additional solicitor general (ASG) Aishwarya Bhati appeared for the Centre and said that the law is centered around the best interest of the child and is altruistic in nature where both gamete (reproductive cells) have to come from the intending couple undergoing surrogacy. In case of widow or divorcee, the woman must use her eggs and donor sperms to avail the procedure.
The petitioner informed the Court that she has frozen her eggs and the law by restricting surrogacy to only those women who have ever been married violates her right to privacy.
The petition filed through advocate Malak Manish Bhatt said, “The right to a meaningful family life, which allows a person to live a fulfilling life and helps in retaining her physical, psychological and emotional integrity falls within the ambit of Article 21 of the Constitution. Hence, the restriction of surrogacy to only divorced and widowed women is in violation of Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution.
It also questioned the prohibition on monetary compensation to the surrogate mother that effectively makes it impossible for the petitioner to find a surrogate mother.
