As per the Surrogacy Regulation Act, only women who are widowed or divorced and fall within the age range of 35 to 45 years are eligible to pursue surrogacy. This suggests that unmarried women who are single are not permitted to undergo surrogacy to become mothers.
New Delhi: In a recent landmark decision, the Supreme Court of India issued a directive that individuals seeking to undergo surrogacy should now approach their respective jurisdictional high courts. This guidance comes amidst a petitions challenging the surrogacy laws, indicating a significant change in the legal approach towards surrogacy in India. The bench, comprising Justices BV Nagarathna and Augustine George Masih, made this announcement, highlighting the court’s intention to decentralize the decisions of surrogacy permissions to ensure broader access to justice.
This significant change was made by an increasing number of applications from across the country, seeking permission for surrogacy in light of statutory restrictions. The Supreme Court had previously, in October 2023, granted interim permission to a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome to pursue surrogacy using a donor egg. This decision temporarily stayed the enforcement of a recent amendment to the Surrogacy Rules, which prohibited the use of donor eggs in gestational surrogacy by intending couples. The court’s latest directions aims to provide these applications to the High Courts, encouraging applicants in similar situations to seek relief closer to home.
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Justice Nagarathna emphasized the importance of utilizing the jurisdictional high courts for such matters, suggesting that it would not only streamline the process but also enhance access to justice for individuals seeking surrogacy. Additional Solicitor General Aishwarya Bhati supported this perspective, acknowledging the ongoing deliberations by the union government’s experts on the surrogacy law challenges.
The Supreme Court’s decision to not issue a blanket order prohibiting future applicants from seeking permissions directly and the nuanced approach required in dealing with surrogacy-related legal matters. By allowing applicants to approach their jurisdictional High Courts, the Supreme Court aims to facilitate a more efficient and accessible legal process for those seeking surrogacy.
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Earlier, the Supreme Court addressed the case of an unmarried woman seeking permission to use a surrogate for motherhood. The Surrogacy Regulation Act, limiting surrogacy to widowed or divorced women aged between 35 to 45 years. This legislation effectively bars single, unmarried women from pursuing surrogacy as a means of parenthood.
During the hearing, Justices B.V. Nagarathna and Augustine George Masih expressed reservations regarding the petition. They emphasized the importance of safeguarding the institution of marriage, distinguishing Indian norms from Western practices where children are often born outside of wedlock.
The backdrop of the case, whereas the petitioner, a 44-year-old woman employed at a multinational company, challenged Section 2(s) of the Surrogacy (Regulation) Act through her lawyer, Shayamal Kumar. The court advised alternatives such as marriage or adoption, but the petitioner expressed disinterest in marriage and cited the lengthy adoption process.
Highlighting the challenges of raising a surrogate child at an advanced age and echoing concerns about societal norms, the bench emphasized the importance of marriage and parental awareness. The court’s viewed it as a conservative approach, aiming to preserve traditional family structures.
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While some public figures like Ekta Kapoor, Tushar Kapoor, and Karan Johar have utilized surrogacy despite being unmarried, the petitioner’s lawyer argued against the discriminatory nature of the law. He asserted that the restrictions infringed upon Fundamental and Human Rights, citing the UN’s recognition of Reproductive Rights under Article 21.
The court agreed to review the petitioner’s case alongside other challenges to the Surrogacy Regulation Act. The ongoing debate surrounding surrogacy laws in India and the complexities involved and with recent development it aims to protecting the interests of all parties involved, including intending parents, surrogate mothers, and the children born through surrogacy. The Supreme Court’s direction ensuring the rights to privacy and reproductive autonomy are balanced with regulatory and ethical considerations in surrogacy practices.
