The Supreme Court on Tuesday agreed to examine a plea for quashing a provision of the surrogacy law which bars single unmarried women from having children through surrogacy.
A bench of Justices BV Nagarathna and Ujjal Bhuyan issued notice to the Centre and sought its response to the petition.
During the brief hearing, senior advocate Saurabh Kirpal, appearing for petitioner Neha Nagpal, a practising lawyer, said there were massive gaps in the current surrogacy rules that are violative of Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution.
Additional Solicitor General Aishwarya Bhati, appearing for the Centre, informed the bench that the issue of single unmarried women opting for surrogacy is pending before a larger bench.
Kirpal said the matter needs to be heard as it involves a larger constitutional question.
The bench then ordered issuance of notice to the Centre.
The plea, filed through advocate Malak Manish Bhatt, said the petitioner wants to secure her right of availing herself of surrogacy and experience motherhood on her terms without the State’s interference in her private life.
“The Petitioner has a right to reproduction and motherhood even without entering a marriage. The Petitioner has a diabetic condition and is approx. 40 years of age and has been informed that pregnancies above 36 years of age are termed as geriatric pregnancies and involve complications especially in diabetic patients,” the plea said.
Referring to various apex court verdicts, Nagpal said in her plea that the right to reproduction and motherhood has been recognised by the Supreme Court and extends not only to reproduction by way of natural conception. It must also include within its ambit the right to access freely the scientific and medical advancements which can help realise the right of reproduction and motherhood, such as surrogacy and assisted reproductive technologies, failing which the right will be bereft of meaning, the plea said.
“Surrogacy is the only viable option available to the Petitioner for having a child and family of her own but she finds herself excluded from availing the benefits of this scientific and medical advancement by way of various provisions of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022,” it said.
Referring to section 2(1) (s) of the Surrogacy (Regulation) Act, 2021, the plea said it bars single, unmarried women from availing themselves of the benefits of surrogacy while allowing the same for divorced/widowed women.
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“This is manifestly arbitrary and irrational since in both cases the woman would be a single mother. The manifest arbitrariness and irrationality is clear from the fact that there is no restriction on a single, unmarried woman adopting a child or having a child out of wedlock. The Act by restricting surrogacy to only those women who have ever been married even though they may now be divorced or widowed violates the Petitioner’s right to privacy,” Nagpal said.
She said there is no rational nexus between the imposition of the requirement of having ever been married on a to-be single mother (widowed, divorced or unmarried) and the objects of the Act.
The plea said the provision violates the petitioner’s right to reproduction, right to meaningful family life and right to privacy, all of which are facets of the fundamental rights under Article 21 of the Constitution.
“The right to a meaningful family life, which allows a person to live a fulfilling life and helps in retaining her physical, psychological and emotional integrity falls within the ambit of Article 21 of the Constitution. Hence, the restriction of surrogacy to only divorced and widowed women is in violation of Articles 14 and 21 of the Constitution,” the petition said.
