Supreme Court Issues Notice On Plea Challenging Surrogacy (Regulation) Act Provisions Precluding Unmarried Women From Becoming Intending Mothers

Section 2(s) defines ‘intending woman’ as ‘an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy’. The petitioner, who is an unmarried woman in her late 30s, and had already initiated the search for a potential surrogate mother before the legislation came into place, is now aggrieved by certain provisions of the enactment. She has approached the Apex Court assailing Sections 2(r), 2(s), 2(zd) and 2(zg) read with Section 4 and 5 of the Act as unconditional, illegal, void and in violation of Articles 14, 19, 38 and 51 of the Constitution of India in as much they preclude unmarried women from embracing parenthood through surrogacy.

The petition has been filed through Advocate-on-Record, Mr. Mayank Pandey. Appearing before a Bench comprising Justice Ajay Rastogi and Justice Bela M. Trivedi, the Counsel apprised it that the petitioner has already undergone surgery for extraction of her eggs. While she was in search for a surrogate, the legislature came into force. The petition submits that the petitioner has undergone severe mental and physical stress associated with the medical procedure. It appears that the petitioner has already incurred an expense of INR 1,00,000 for extraction and a recurring payment of INR 40,000 for freezing, every six months.

It is argued in the petition that there is no illegible differential or rational nexus for treating ‘unmarried’ women as a separate category from other ‘intending women’. It emphasises that marital status of an individual cannot be a marker for classification.

“Prohibiting unmarried or single women from accessing the benefit of surrogacy while allowing married women, widows and divorcees to access fall foul of Article 14”, the petition reads.

According to the petition, by impinged on a woman’s right to exercise autonomy and control over her reproductive decisions, the impugned provisions are also violative of Article 21 of the Constitution of India. Among other judgments, it referred to the recent decision of the Apex Court in X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr, wherein it had held that -

“The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and exclude groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.”

Section 4, which lays down the surrogacy procedure, has been assailed on the ground that it places unreasonable restrictions on exercise of reproductive rights of intending couple. Some of the unreasonable requirements pointed out in the petition are -

• the requirement to not have any surviving child;
• the requirement that the surrogate mother should be genetically related to the intending couple or intending woman;
• the condition restricting the surrogate to act as a surrogate mother more than once in her lifetime;
• the condition of age limit of 25-35 years for the surrogate mother to undergo surgery; and
• the condition that intending mother should only be a widow or divorcee between the age of 35-45 years.

The petition claims that the Legislature has failed to incorporate the recommendations given by the Law Commission in its report titled ‘Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy’. The report recognises the right of an unmarried woman to be an intending mother. The petition also argues that the impugned provisions are violative of international instruments.

[Case Title: X v. UoI And Anr. WP(C) No. 42/2023]