“We need to separate this case. In the other cases, the petitioners are married women. Since you are representing transgender persons and single women, we need to handle this separately and not combine it,” Justice Nagarathna stated.
NEW DELHI: Today (8th July): The Supreme Court issued a notice to the Central Government regarding a public interest litigation (PIL) challenging the exclusion of single unmarried women and transgender persons from the Surrogacy (Regulation) Act, 2021.
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The bench, comprising Justice BV Nagarathna and Justice Dipankar Dutta, requested responses from the Ministry of Health and Family Welfare, Ministry of Law and Justice, and Ministry of Woman and Child Development.
However, the Court did not combine this matter with the existing petitions challenging the same rule.
“We need to separate this case. In the other cases, the petitioners are married women. Since you are representing transgender persons and single women, we need to handle this separately and not combine it,”
Justice Nagarathna stated.
The Court decided not to merge this case with ongoing petitions against the same rule. Justice Nagarathna emphasized the need to segregate the cases as this plea addresses issues specific to transgender persons and single women, unlike the other cases which involve married women.
She also argued that excluding queer and transgender individuals from surrogacy constitutes discrimination based on gender identity and sexual orientation.
“The Rules and Amendment Notification specify that only married couples or women who are divorced or widowed can access surrogacy procedures, thereby excluding single unmarried women and transgender persons. This exclusion applies to all women who are single, never married, in live-in relationships, in same-sex relationships, and queer women,”
the plea stated.
Shaikh argued that excluding single women and transgender persons from surrogacy denies them the right to start a family through surrogacy.
“Such exclusion from surrogacy and the right to form a family discriminates based on marital status and gender identity, violating women’s right to reproductive autonomy. Excluding unmarried single women from the definition of ‘intending woman’ constitutes sex-based discrimination under Article 15(1) as it is based on marital or single status,”
the petition stated.
Dr. Aqsa Shaikh, a 41-year-old transwoman and activist, filed the plea arguing that the exclusion of single unmarried women and transgender persons from surrogacy procedures violates Articles 14, 15(1), and 21 of the Constitution. She contends that the exclusion discriminates based on gender identity and sexual orientation.
The plea highlights that the current rules only allow married couples or women who are divorced or widowed to access surrogacy, thus excluding single unmarried women, women in live-in relationships, women in same-sex relationships, and queer women. Shaikh argues that this exclusion denies them the right to form a family through surrogacy and violates their reproductive autonomy.
According to the plea, transgender individuals are increasingly choosing surrogacy as a means to build their families.
“Transgender persons who have preserved eggs or sperm prior to their gender affirmation procedures may have stored genetic material available for use in surrogacy. Alternatively, they may be able to contribute eggs or sperm to create embryos for conception through surrogacy. However, Section 2(s) of the Act only mentions ‘intending woman’ and does not encompass transgender persons, thereby excluding them from accessing surrogacy procedures to have children,”
Shaikh’s plea stated.
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Additionally, the plea points out that transgender individuals are increasingly opting for surrogacy to build families, and excluding them from surrogacy procedures perpetuates negative stereotypes and discriminates based on marital status and gender identity.
Case Title: Dr Aqsa Shaikh v. Union of India and Others
