The Bombay High Court recently addressed a very important issue regarding the rights of single women to access surrogacy. On April 21, 2025, the court directed a divorced woman to approach the Supreme Court for clarity on her eligibility for surrogacy. This case marks broader questions about the legal framework governing surrogacy in India and its implications for single women.
About Surrogacy in India
Surrogacy is a practice where one woman carries and gives birth to a child for another couple. The Surrogacy (Regulation) Act, 2021 governs this practice in India. It defines terms such as ‘intending couple’ and ‘intending woman.’ The law stipulates that surrogacy is available to couples with medical indications necessitating gestational surrogacy.
Eligibility Criteria under the Law
The law specifies that an ‘intending woman’ must be a widow or divorcee aged between 35 and 45 years. She must not have any surviving children, whether biological or adopted. Exceptions exist only if an existing child has a life-threatening condition or is certified as physically or mentally challenged. This clause raises questions about the rights of single women who desire motherhood.
The Case of the Divorced Woman
The petitioner, a divorced woman with two biological children, sought surrogacy after undergoing a hysterectomy. Her application for a medical certificate for surrogacy was rejected based on the Surrogacy Act, which deemed her ineligible due to her existing children. The case puts stress on the tension between legal definitions and individual circumstances.
Concerns Raised by the Court
The Bombay High Court expressed concerns about the potential commercialisation of surrogacy. Justices brought into light the implications of allowing single women to pursue surrogacy. They questioned the legal and ethical ramifications if unmarried couples sought surrogacy and later separated. The court noted the need to consider the rights of the surrogate child, not just the woman’s rights.
Supreme Court’s Involvement
The High Court referred the matter to the Supreme Court, which is currently deliberating on broader issues regarding the rights of unmarried and single women in surrogacy. The High Court advised the petitioner to join the ongoing Supreme Court proceedings for a comprehensive resolution.
Implications for Future Legislation
This case may lead to changes in the legal landscape surrounding surrogacy in India. It raises questions about the inclusivity of the law and the need to adapt to evolving societal norms regarding family and parenthood. The outcome could set a precedent for future cases involving surrogacy and single women.
Questions for UPSC:
- Critically analyse the implications of the Surrogacy (Regulation) Act, 2021 on women’s reproductive rights in India.
- What are the ethical concerns surrounding commercial surrogacy? Discuss with suitable examples.
- Explain the role of the judiciary in shaping reproductive rights in India. How does it impact societal norms?
- What is the significance of the Supreme Court’s involvement in cases related to surrogacy? How does it influence legislation?
Answer Hints:
1. Critically analyse the implications of the Surrogacy (Regulation) Act, 2021 on women’s reproductive rights in India.
- The Act restricts surrogacy to “intending couples,” limiting access for single women and unmarried individuals.
- Eligibility criteria such as having no surviving children can discriminate against women with existing children.
- Exceptions for life-threatening conditions raise questions about the definition of motherhood and reproductive autonomy.
- The Act could reinforce traditional family structures, potentially marginalizing diverse family forms.
- Legal clarity is needed to balance reproductive rights with ethical considerations in surrogacy practices.
2. What are the ethical concerns surrounding commercial surrogacy? Discuss with suitable examples.
- Exploitation of economically disadvantaged women who may be coerced into surrogacy for financial gain.
- Concerns about the commodification of children and the potential for treating them as products.
- Potential health risks for surrogate mothers, including psychological impacts and medical complications.
- Legal ambiguities regarding parental rights and the status of the surrogate child post-birth.
- Examples include cases where surrogates faced legal battles over custody or payment disputes, denoting moral dilemmas.
3. Explain the role of the judiciary in shaping reproductive rights in India. How does it impact societal norms?
- The judiciary interprets laws and can expand or restrict reproductive rights through landmark rulings.
- Judicial decisions can challenge existing societal norms and promote gender equality in reproductive health.
- Cases like the decriminalization of homosexuality and rights to abortion reflect progressive judicial activism.
- Public interest litigations often bring reproductive rights issues to court, influencing societal awareness and norms.
- Judicial rulings can lead to legislative changes, promoting a more inclusive approach to reproductive rights.
4. What is the significance of the Supreme Court’s involvement in cases related to surrogacy? How does it influence legislation?
- The Supreme Court serves as the highest authority in interpreting the Constitution, impacting fundamental rights related to reproduction.
- Its rulings can set legal precedents that shape future legislation on surrogacy and reproductive health.
- Engagement with ongoing cases can prompt legislative bodies to reconsider and amend existing laws for inclusivity.
- Supreme Court observations can address gaps in laws, such as the rights of surrogate mothers and children.
- Public scrutiny of Supreme Court decisions can raise awareness and drive societal discussions on reproductive rights.
