Proposes alternatives like marriage or adoption, and emphasizes the welfare of surrogate-born children.
The Supreme Court of India emphasized the value of keeping the tradition of marriage intact. They raised concerns about letting single women become mothers through surrogacy. This viewpoint came up during a case where a 44-year-old unmarried woman was asking for the right to have a child through surrogacy, which is currently not allowed by Indian law.
The bench, comprising Justices B V Nagarathna and Augustine George Masih, emphasized that in Indian society, the norm is for motherhood to occur within the bounds of marriage. Justice Nagarathna remarked,
“It is a norm here to become a mother within the institution of marriage. Being a mother outside the institution of marriage is not the norm. We are concerned about it. We are speaking from the point of view of (the) child’s welfare. Should the institution of marriage survive or not in the country? We are not like western countries. The institution of marriage has to be protected. You can call us and tag us conservative, and we accept it.”
The person making the request, who works for a multinational company, questioned the Surrogacy (Regulation) Act’s definition of “intending woman” with the help of her lawyer, Shayamal Kumar. According to the Act, surrogacy is limited to Indian widows or divorcees between 35 and 45 years old, excluding single, unmarried women from using surrogacy to become mothers.
At the beginning of the hearing, the justices suggested alternative paths to motherhood, such as marriage or adoption, noting the petitioner’s reluctance to marry and the lengthy waiting periods associated with adoption.
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The court’s stance reflects a deep-seated concern for societal norms and the welfare of children born through surrogacy, emphasizing,
“It is difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life. Your client preferred to remain single. We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers.”
The petitioner’s lawyer argued that the Act’s limits were unfair, violating fundamental rights and the basic human right to start a family, recognized by the United Nations. Reproductive rights, considered part of personal freedom under Article 21.
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The Supreme Court’s discussions on this issue, set against the changing landscape of reproductive technologies and societal views on marriage and parenthood.
