In a recent development, the Delhi High Court has critically examined the Surrogacy (Regulation) Act, 2021, which currently restricts the use of surrogacy to only widows or divorced women between the ages of 35 and 45. The court has questioned the rationale behind associating a woman’s marital status with her eligibility to undergo the surrogacy procedure.
The bench, led by Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, posed a pertinent question:
“Why marital status for intending woman? (Even if) she (the widow or divorcee) has no matrimonial life, why this discrimination?”
The court sought clarity on the exclusion of single, unmarried women from availing the benefits of surrogacy under the current law.
The Centre’s representative stated that she would seek further instructions regarding the query. Similarly, the lawyer representing the National Medical Commission (NMC), T Singhdev, mentioned that he would also examine the issue in detail.
This scrutiny by the Delhi High Court was prompted by a petition filed by a 44-year-old single, unmarried woman. She challenged section 2(1)(s) of the Act, which currently excludes women like her from undergoing the surrogacy procedure, while only allowing Indian widows or female divorcees to benefit from it. The petitioner’s primary contention is that the reproduction of a female gamete has no connection with a woman’s marital status, and the state should not regulate the reproductive choices of its citizens.
Furthermore, the petitioner’s lawyer informed the court that, due to her age, it is medically inadvisable for her to use her own gametes for the surrogacy procedure. As a result, she wishes to use donor female gametes. To maintain a genetic connection, the petitioner’s brother has willingly consented to donate his male gametes.
The court observed,
“Further, the Impugned Notification does not disclose any rational justification, basis or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing Surrogacy services.”
The court also emphasized that the Notification must be held to be prospective in its application and cannot retroactively render a
“legally fertilized embryo unviable.”
The petition also highlighted the age restrictions imposed by the law, arguing that they are
“highly irrational, unlawful, discriminatory and violative of the fundamental rights of the petitioner under Articles 14 (right to equality) and 21 (right to life) of the Constitution.”
The Delhi High Court has permitted the resumption of the gestational surrogacy process for couples using preserved embryos created prior to the issuance of the controversial notification. The court stated,
“The Respondents are directed to facilitate the same in accordance with the previously existing regime, and it is made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother.”
The case, which has sparked significant debate and discussion, is scheduled for its next hearing on October 31. The outcome is eagerly awaited, as it will have profound implications for surrogacy regulations and women’s reproductive rights in India.