Supreme Court Seeks Centre's Response On Plea To Allow Surrogacy For Single Unmarried women

The Supreme Court on Tuesday (05.12.2023) sought the response of the Central Government in a plea challenging various provisions of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022 that excludes unmarried single women from availing the option of having children through surrogacy. 

A bench of Justices BV Nagarathna and Ujjal Bhuyan issued notice in the plea today. 

The petition was filed by a practicing lawyer, who has argued that she has the right to reproduction and motherhood even without entering into a marriage. The plea points out that the right to reproduction and motherhood has been recognized by the Supreme Court in various decisions. This right extends not only to reproduction by way of natural conception but must also includes the right to freely access scientific and medical advancements which can help realize the right of reproduction and motherhood, such as surrogacy and assisted reproductive technologies, the plea argues. Otherwise, the said rights will fail to have any meaning, the plea states. 

The petitioner has pointed out that Section 2(1)(s) of the Act bars single, unmarried women from availing surrogacy, but this is allowed for divorced/ widowed woman. This is manifestly arbitrary, the plea argues. 

"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. There is no rational nexus between 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 states. 

The said provisions violate the Petitioner's right to reproduction, right to found a family, right to meaningful family life and right to privacy, which are all facets of the Fundamental Rights under Article 21 of the Constitution, the petitioner argues in her plea. 

The plea also highlights that instead of regulating commercial surrogacy to address any potential concerns of exploitation of Surrogate Mothers, the Act chooses to completely prohibit any monetary consideration/ compensation to a Surrogate Mother. 

"..the prohibition on any monetary compensation/ consideration to the Surrogate Mother effectively makes it impossible for the Petitioner to find a Surrogate Mother. The law instead of seeking to regulate surrogacy in effect bans it by imposing the requirement of altruistic surrogacy and violates the principle of lex non cogit ad impossibilia (law does not compel the doing of impossibilities)" the plea states. 

"It would shake the conscience of the Petitioner to ask of another woman to undertake gestational surrogacy for 9 months and the rigors of pregnancy with all its attendant risks, impact on quality of life, impact on the body, impact on mind (post-partum depression) and loss of income, without any monetary consideration" the plea further adds. 

The plea also challenges Section 2(1)(zg) of the Act and paragraph 1(d)(II), Form 2 of the Surrogacy (Regulation) Rules, 2022 which prohibits the use of donor eggs and requires single woman to only use self-eggs .This prohibition on the use of donor eggs denies the intending mother, the right to reproduction, right to found a family, right to meaningful family life and right to privacy, the plea argues. 

AOR Malak Manish Bhatt and Sr. Adv. Saurav Kirpal appeared for the petitioner. 

Case Title: Neha Nagpal alias Neeha Nagpal vs Union of India and ors, W.P.(C) No. 1316/2023

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