Why Indian Surrogacy Laws Must Include Rights Of Single, Trans Women

The Supreme Court of India has directed the Centre to respond to a public interest litigation (PIL) petition against the exclusion of single unmarried women and trans persons from the Surrogacy (Regulation) Act 2021. The plea was filed by a 41-year-old transwoman and activist Dr Aqsa Shaikh, who argued that the exclusion of single unmarried women and trans persons from availing surrogacy is violative of Articles 14 (right to equality), 15(1) (Prohibition of discrimination), and 21 (protection of life and personal liberty) of the Indian Constitution.

The division bench of Justice BV Nagarathna and Justice Dipankar Dutta sought the response of the Union of India through the Ministry of Health and Family Welfare, Ministry of Law and Justice and Ministry of Woman and Child Development.

Transpersons Demand Right To Surrogacy

According to the petitioner, the exclusion of queer and transgender persons from availing surrogacy amounts to discrimination on the ground of gender identity and sexual orientation. "As such, all women who are single, and never married, or women in live-in relationships, women in same-sex relationships and queer women are completely excluded from availing surrogacy procedures," the plea said.

Shaikh noted that transgender people are increasingly opting for surrogacy as their chosen path for building a family. "Transgender persons who have stored eggs or sperm before their gender affirmation procedures may have eggs, sperm or embryos in storage available for them to use in a surrogacy process. Alternatively, they may be able to provide eggs or sperm to create embryos to conceive a child through surrogacy," the plea says.

Surrogacy For Widowed, Divorced Women

In February 2024, the Ministry of Health and Family Welfare made amends to allow divorced or widowed women (singles) to avail of surrogacy procedures using donor sperm and their own eggs. The Centre also certified that under certain conditions, couples (married male and female) can opt for gametes (eggs or sperm) from a donor in case one of them is suffering from a medical condition, a report in the Press Trust of India reported.

The Centre released a notification that stated, "In case when the District Medical Board certifies that either the husband or wife constituting the intending couple suffers from a medical condition necessitating the use of donor gamete, then surrogacy using donor gamete is allowed."

The notification also stated that in couples, surrogacy using donor gamete is allowed only if "the child to be born through surrogacy must have at least one gamete from the intending couple.". This means that a couple cannot opt for surrogacy if both partners have medical problems or are unable to have their own gametes. 

The Centre amended the earlier surrogacy rules, which imposed a ban on indenting couples from undergoing surrogacy using donor gametes. Rule 7 initiated on March 14, 2023, stated that both gametes must come from the intended couple. In December of that year, a Supreme Court bench observed, "The very purpose of surrogacy would get defeated by such rules."

The Supreme Court of India allowed a woman with a rare congenital disorder to avail donor eggs for surrogacy last year, after which several more pleas poured in. In October, the Delhi High Court observed that the Centre’s notification banning donor gametes in surrogacy prima facie violates the “basic rights” of a married infertile couple to parenthood by “denying them access to legally and medically regulated procedures and services," according to Indian Express.

The new amendment to the surrogacy law welcomes hope for single women and heterosexual married couples intending to be parents. Meanwhile, the surrogacy rule that denies unmarried women the right to have surrogate children, was also challenged in the apex court. However, the top court dismissed this plea, saying it could violate the institution of marriage.