Why cannot single, unmarried women avail of the benefit of surrogacy under the law, the Delhi High Court on Monday asked the Centre while seeking an explanation for the “discrimination”.
A Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula also questioned why only a widow or a divorcee aged between 35 and 45 could avail of the procedure under the Surrogacy (Regulation) Act, 2021.
Centre seeks time
The Centre’s counsel sought time to seek instructions on the query.
The High Court posed the question while hearing a petition filed by a 44-year-old unmarried woman who challenged Section 2(1)(s) of the Act.
The provision excludes women like her from availing of the surrogacy procedure.
The petition also challenged the regulation that forces a single woman (widow or divorcee) to use her own eggs to avail of the procedure.
The petitioner’s lawyer told the court that she could not get married and now wants to have a child through surrogacy, but owing to her age, it is medically not advisable to use her own gametes for the procedure.
Thus, she wants female gametes from a donor.
To be genetically connected, the petitioner’s brother has consented to donate his male gametes, the court was told.
The petitioner argued that the restrictions are irrational, unlawful, discriminatory, and violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 have put in place various guidelines and rules to regulate the procedure of surrogacy in India.
The two Acts ban all forms of commercial surrogacy, where the surrogate mother is paid over and above the necessary medical expenses.
The laws, however, allow altruistic surrogacy in which the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except for the essential medical expenses.
The law also permits only married women aged between 25 and 35 who have at least one biological child to be surrogates. Moreover, the surrogate mother must be married and “genetically related to the intending couple or the intending woman”.