The Supreme Court of India has initiated a critical examination of a plea challenging the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022, for their exclusion of single, unmarried women from the option of surrogacy. The bench, comprising Justices BV Nagarathna and Ujjal Bhuyan, has issued a notice to the Central Government, seeking a detailed response on this matter. The plea, filed by Neha Nagpal, a practicing lawyer, raises significant questions about the current legal framework governing surrogacy in India.
During the hearing, Senior Advocate Saurabh Kirpal, representing Nagpal, highlighted the substantial gaps in the current surrogacy rules, arguing that they violate Articles 14 (equality before law) and 21 (right to life and personal liberty) of the Constitution. Additional Solicitor General Aishwarya Bhati, representing the Centre, informed the bench that the issue concerning single unmarried women opting for surrogacy is currently pending before a larger bench. Kirpal emphasized the urgency of the matter, stating that it involves a larger constitutional question that needs to be addressed.
Nagpal’s plea is grounded in her right to reproduction and motherhood, irrespective of her marital status. She points out her diabetic condition and the associated risks with geriatric pregnancies, particularly for diabetic patients, arguing that surrogacy is her only viable option to have a child and family. The plea underscores that the right to reproduction and motherhood extends beyond natural conception, encompassing the right to freely access scientific and medical advancements like surrogacy and assisted reproductive technologies.
The petition specifically challenges Section 2(1)(s) of the Surrogacy (Regulation) Act, which bars single, unmarried women from availing the benefits of surrogacy, while allowing the same for divorced or widowed women. Nagpal contends that this distinction is manifestly arbitrary and irrational, as it treats single mothers differently based on their marital history. She argues that there is no rational nexus between the imposition of the requirement of having ever been married on a to-be single mother and the objectives of the Act.
Nagpal’s plea further states that these provisions violate her fundamental rights under Article 21 of the Constitution, including her right to reproduction, right to meaningful family life, and right to privacy. She asserts that the right to a meaningful family life, which allows a person to live a fulfilling life and maintain physical, psychological, and emotional integrity, falls within the ambit of Article 21. Therefore, restricting surrogacy to only divorced and widowed women is in violation of Articles 14 and 21 of the Constitution.
The Supreme Court’s decision to examine this plea is a significant development in the discourse surrounding surrogacy laws in India. It highlights the need to reevaluate the legal provisions in light of individual rights and freedoms, particularly concerning the rights of single, unmarried women. The hearing is set to delve deeper into the constitutional validity of the existing surrogacy regulations and their alignment with the fundamental rights enshrined in the Constitution.
