Get Married Or Adopt: SC On Single Woman's Petition For Surrogacy

The Supreme Court on Monday made a questionable judgement on the rights of an unmarried woman to have babies through surrogacy. While hearing the petition of a 44-year-old unmarried woman, the court said that it is important to protect the sanctity of marriage, unlike in the West where it is normal to have children outside the marriage. 

The petitioner, who works at a multinational company, approached the court for permission to become a mother through surrogacy with her lawyer Shayamal Kumar. She also challenged Section 2(s) of the Surrogacy (Regulation) Act in the petition prevents unmarried women in India from opting for surrogacy. According to the Surrogacy Regulation Act, women who are widowed or divorced and between the ages of 35 to 45 years can only opt for surrogacy. 

The petition was being heard by a bench that comprised Justices B.V. Nagarathna and Augustine George Masih. 

Children should be born within marriage

Speaking about the norms of society and protecting marriage as the space where children should be born, Justice Nagarathna said, "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 (the) child’s welfare. Should the institution 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 accept it." 

The court advised the woman petitioner to consider other ways of having a child. The court suggested she either get married or consider adoption. 

However, the woman's lawyer said that the woman doesn't want to get married and cannot consider adoption because of the long waiting period. 

You can't have everything: the court

To this, the court said, "You cannot have everything in life. Your client preferred to remain single."

It further added that it is difficult to rear a child at the advanced age of 44. Speaking about the welfare of the child, the court said, "We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers. Science has advanced but not the social norms and that is for some good reason." 

The lawyer challenged the provision and claimed that the law was discriminatory against single women. He said, "The restrictions are wholly discriminatory and without any rational or reason… the said restrictions not only infringe on the fundamental rights of the petitioner but are also violative of basic human rights of an individual to found a family as recognised by the UN and reproductive rights… recognised as an aspect of personal liberty under Article 21." He then suggested that single women could get married just to be eligible for surrogacy and then file for divorce. 

But the court denied it and said that it wasn't so easy. However, the court has said that it would head the woman's petition with other batches of petitions challenging other laws of the Act.