Delhi HC Challenges Single Women's Exclusion In Surrogacy Laws: Why It Matters

The Delhi High Court,  in its pursuit of justice and equality, has posed a thought-provoking question that resonates with the essence of our societal values - why do the laws surrounding surrogacy exclude single, unmarried women from this experience?

Background Of The Motion Set By Ministry

On March 14, the Union Ministry of Health and Family Welfare set in motion a notification that sent shockwaves through the surrogacy landscape. This notification introduced stringent restrictions on the use of donor gametes for couples intending to undergo surrogacy. It mandated that surrogacy should exclusively involve the gametes of the intending couple, categorically excluding the use of donor gametes. What was even more striking was the provision that single women opting for surrogacy were only allowed to use their own eggs, thereby denying them the option of using donor gametes.

Challenging Conventions: A 44-Year-Old's Quest

A recent legal proceeding witnessed the esteemed Delhi High Court addressing a crucial question. A division bench, led by Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, delved into the legality and fairness of excluding single, unmarried women from the ambit of the Surrogacy (Regulation) Act, 2021. 

At the centre of this legal drama was a provision that shook the foundations of fairness and equality – Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021. This provision, as it currently stands, restricts access to surrogacy for single women to only those who are widows or divorcees aged between 35 and 45. A pivotal moment emerged when a 44-year-old unmarried woman decided to challenge the limitations imposed by this section, asserting her fundamental right to parenthood.

The court's progressive stance finds wide online appreciation among women.

Thank you, @DelhiHighCourt for upholding the right of unmarried women to surrogacy. This won’t tear apart society either. Time to give it a progressive 21st-century definition despite efforts to drag it back to hidebound backwardness.

— bachi karkaria (@bachikarkaria) October 17, 2023

The Complexity of Choice

This brave petitioner, standing firm in her convictions, refuses to bow down to societal norms or submit to a narrow interpretation of the law. She yearns for the profound experience of motherhood but faces a medical hurdle due to her age, which deems the use of her own gametes inadvisable. Her quest is to make use of donor gametes, ensuring that her journey into parenthood is not only possible but medically sound.

The complexity of the woman's situation is both deeply personal and universally resonant. At the core of this struggle lies a decision with profound implications – whether a single woman, like the petitioner, should be allowed to use donor gametes for surrogacy. It's a choice that transcends legal definitions and societal expectations, touching upon the very core of her identity and autonomy.

Constitutional Rights and Legal Dilemmas

The petitioner, unyielding in her resolve, argues that these restrictions are not only irrational but also discriminatory and in violation of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution. Her legal battle serves as a clarion call for the courts to weigh in on the delicate balance between regulation and individual rights.

The Landscape of Surrogacy in India

In India, the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, serve as the guiding principles in the domain of surrogacy. These laws provide guidelines and regulations to govern the surrogacy procedure, with an explicit ban on commercial surrogacy where surrogate mothers are compensated beyond essential medical expenses.

Under these laws, only married women between the ages of 25 and 35, who have at least one biological child, are eligible to be surrogate mothers. Moreover, the surrogate mother must be married and "genetically related" to the intending couple or intending woman.

The case of this 44-year-old unmarried woman becomes a story of shining light on the ever-expanding horizons of surrogacy. Her journey challenges norms, tests the boundaries of legal frameworks, and reminds us all that the pursuit of parenthood is deeply personal and should not be confined by narrow definitions. The Delhi High Court, by addressing this pressing issue, not only examines the legality of a specific provision but also underscores the need to embrace the evolving landscape of parenthood, choice, and the pursuit of happiness. This case may well set a precedent that resonates far beyond the courtroom, shaping the future of surrogacy in India and the world.

Suggestive reading: Win For Single Mothers: Delhi HC Rules Father's Name Not Needed For Passport