The Supreme Court on December 5 questioned whether a single, unmarried woman having a child through surrogacy is an “accepted norm” in Indian society.
“A single woman bearing a child is an exception and not a rule in Indian society because our society says to have children within marriage. A single woman bearing a child is outside marriage… That is not the accepted norm of Indian society,” Supreme Court judge B.V. Nagarathna orally observed.
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The Bench, also comprising Justice Ujjal Bhuyan, was hearing a petition filed by a 38-year-old single and unmarried woman to become a mother through surrogacy.
The petitioner, represented by senior advocate Saurabh Kirpal, said she was “heavily diabetic” and pregnancy would pose a grave risk to her.
“Even an unmarried woman has the right to have a child,” Mr. Kirpal submitted.
The Surrogacy (Regulation) Act, 2021 allows a widow, a divorced woman between the age of 35 and 45 years, and an infertile couple to avail the benefit of surrogacy.
Mr. Kirpal said the law only banned commercial surrogacy. The purpose of the petitioner was obviously not towards that end. Limiting the right to become a mother and discriminating against a woman on the basis of her status of marriage was discriminatory and violative of her fundamental rights to equality and life under Articles 14 and 21 of the Constitution.
Justice Nagarathna said the Parliament had recognised the “potential” of a widow or a divorcee, who had gone through marriage and was struck by the “misfortune” of losing her partner through death or divorce, to have a child through surrogacy.
The petitioner’s side argued that it was not their “misfortune” which led the Parliament to allow divorcees and widows to have children through surrogacy. They argued that the exclusion of unmarried women boiled down to “patriarchal stigma” against them.
Justice Nagarathna said the law has made marriage a basis of classification, and not discrimination.
The judge said married and unmarried woman enjoy the same status and rights as far as termination of pregnancy was concerned. They were treated on par even in the case of adoption.
“But here we are concerned whether single women can have children through surrogacy when the Parliament has not permitted it… Should this court say unmarried women can go for surrogacy?” Justice Nagarathna said.
“Society may not be used to having a single woman bear children, but is that a reason to deny them the right? A multitude of women choose not to marry, some do not get married not because they wish to… Their choices have to be respected. We cannot force them to get married to have a child,” Mr. Kirpal submitted.
The petitioner’s lawyers said she had frozen her eggs in December 2023.
Additional Solicitor General Aishwarya Bhati, for the Centre, said unmarried women could undergo pregnancy through assisted reproductive technologies (ART).
“But then she would have to undergo pregnancy,” Mr. Kirpal said.
“We have a conundrum here. How many ART procedures have happened in India for unmarried women?” Justice Nagarathna asked the Centre.
The judge said “we are keeping in mind the pulse of Indian society”. Mr. Kirpal responded that the court should “keep in mind the pulse of the Indian Constitution”. The court issued notice to the Centre.
