Supreme Court questions if surrogacy by single women will affect legitimacy of child

The concept of an “illegitimate child” does not exist anymore, says Union government

“Which is the law that gives legitimacy to children born outside a formal marriage, be it a void or voidable marriage,” Justice B.V. Nagarathna asked the Union government. | Photo Credit: The Hindu

The Supreme Court on Friday asked the government whether a single woman intending to be a mother through surrogacy will affect the legitimacy of child.

“If there is no marriage and children are born, which is the law that gives them legitimacy. Which is the law that gives legitimacy to children born outside a formal marriage, be it a void or voidable marriage? There must be the ceremony of marriage, is it not? Please enlighten us,” Justice B.V. Nagarathna asked Additional Solicitor General Aishwarya Bhati, appearing for the Union government.

The court was examining the question of single and unmarried women becoming mothers through surrogacy.

Ms. Bhati responded that the concept of an “illegitimate child” did not exist anymore.

“The whole concept is gone following decisions of the Supreme Court. There are no ‘illegitimate children’ anymore,” the law officer said.

Ms. Bhati explained there were four ways of “birth of a child”. The natural birth, birth through Assisted Reproductive Technology (ART), adoption and surrogacy, she submitted.

She said surrogacy followed the most extreme legal regime. “In this, you are using another woman’s womb. Therefore, the regime in surrogacy is very strict. You cannot use the womb of another woman in a light way. It has to be by people in a stable marriage suffering from some difficulties in having a child. They have to try natural birth first, ART and then only come into the surrogacy regime,” Ms. Bhati detailed.

She said the intention behind making the surrogacy regime stringent was to prevent the exploitation of women and to safeguard the welfare of the child.

Ms. Bhati submitted that for single women, adoption was permissible, even ART. “It is her own body. She is not using somebody else’s body,” the law officer noted. Ms. Bhati said she would make detailed submissions in this regard.

The court listed the case for further arguments on March 15.