The Supreme Court denied a 44-year-old unmarried woman’s appeal to have a child through surrogacy on February 5. The Supreme Court says the institution of marriage has to be protected, the country is not like the Western nations where children are born out of wedlock.
The petitioner is a 44-year-old unmarried woman, working with a multinational company. She approached the Supreme Court through her lawyer Shayamal Kumar questioning the validity of section (2)a of the Surrogacy Regulation Act which deters single women from opting for surrogacy. According to India's Surrogacy Regulation Act, widowed and divorced women between the age group of 35 and 45 years can opt for surrogacy which means a single unmarried woman can not become a mother through surrogacy.
The Supreme Court bench comprising Justice B. V. Nagarathna and Augustine George Masih while hearing the petition, denied the woman’s plea to opt for surrogacy.
The Supreme Court bench said that- "It is a norm here to become a mother within the institution of marriage, being a mother outside the institution of marriage is not the norm. We are concerned about it. We are speaking from the point of view of a child's welfare. Should the organization of marriage survive or not in the country? We are not like Western countries. The institution of marriage has to be protected. You can call us and tag us conservative, and we admit it." The court also added that a single woman bearing a child outside of marriage was the exception rather than the rule in Indian society.
The petitioner’s lawyer questioned the provisions of the act and said that the law was discriminatory. The petitioner argued that the restrictions were wholly discriminatory and without any rationale or reason. The said restrictions not only infringe on the fundamental rights petitioner but are also violative of the basic human rights of an individual to found a family as recognized by the UN and reproductive right which is recognized as an aspect of personal liberty under Article 21.
The bench also said that there were other ways to become a mother and advised the woman to get married or consider adoption. The woman's lawyer said that the petitioner did not want to get married and the waiting period for adoption was very long.
Denying the petition of the woman the court says, it was difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life. Your client preferred to remain single. We are also concerned about society and the institution of marriage. The court also expressed that the country was unlike Western nations where many children did not know about their mothers and fathers. We do not want children wandering here without knowing about their fathers and mothers. The Supreme Court bench further said that science is well-advanced but not the social norms.
(Input from various sources)