The Bombay High Court on Monday declined to grant interim relief to a 36-year-old divorced woman seeking to become a mother through surrogacy, stating that her case raises complex legal and ethical issues with potential long-term consequences. The Court suggested that she may instead approach the Supreme Court, which is already hearing matters concerning the interpretation of key provisions of the Surrogacy (Regulation) Act.
A division bench comprising Justice G.S. Kulkarni and Justice Advait Sethna observed that the petition filed by the woman, who has two children from her previous marriage now in the custody of their father, involved broader questions about the rights of a child born through surrogacy and the purpose of the legislation.
“This may lead to commercialization of surrogacy. There are some rights of the child too once born. We cannot just think about women’s rights. Look at the repercussions,” the Court remarked during the hearing. It further observed, “What happens if an unmarried couple seeks to go for surrogacy but later separates? Is that the intention of the legislation? Is it permissible under law?”
The woman, represented by advocate Tejas Dande, had approached the High Court after her application to undergo surrogacy was rejected on the grounds that she already has two children and hence does not meet the definition of an “intending woman” under the Surrogacy Act. The Act permits surrogacy for a widow or divorcee only if she has no surviving child or if her surviving child suffers from a life-threatening disorder.
The woman, who married in 2002 and underwent a hysterectomy in 2012, got divorced in 2017. Her two children, she said, are in the custody of her former husband and she has no contact with them. Now living alone, she wishes to become a mother again using her own eggs and through a surrogate, as she cannot conceive naturally.
According to her petition, a private hospital in Pune has already written a recommendation letter to the district civil surgeon, endorsing her for surrogacy on medical grounds.
“Being a divorcee and living alone, the petitioner who is still young seeks to resort to surrogacy for achieving motherhood. The petitioner does not have any mother-child relation with her two children,” the plea stated.
However, the High Court said that the case touches upon a larger legal and social issue, including the rights of the child and the possible misuse of the surrogacy process. “This is not a simple case and involves a larger issue,” the bench noted, while stressing that its decision may set a precedent with far-reaching effects.
In light of the pending matters before the Supreme Court that deal with the definition of “intending woman” and eligibility for surrogacy, the High Court adjourned the matter sine die and advised the petitioner to seek appropriate relief from the apex court.
