Recently, the Supreme Court requested the Central government’s answer to an appeal contesting the legality of Surrogacy (Regulations) Act, 2021, Section 2(1)(s), which restricts single women from serving as surrogate mothers.
The Supreme Court observed an issue regarding Surrogacy Act and Rule which is Challenged by a 44- Year Old Unwed Woman in the matter relating to the Union of India Vs. Jaswinder Kaur, According to the section that is being challenged, an Indian woman can only be considered a “intending woman” for surrogacy if she is a widow or divorcee and between the ages of 35 and 45.
An unmarried 44-year-old woman filed the plea, stating that the section is “highly irrational, unlawful discriminatory, and violative to the Petitioner’s fundamental rights under Articles 14 and 21.”
The custom of becoming a mother was to do so inside the institution of marriage, not outside of it, Justices BV Nagarathna and Augustine George Masih noted during their hearing of the suit.
Additionally, Justice Nagarathna said,
“Science may have evolved but society has not…You cannot have everything in your life. You decided not to marry…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. 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.”
A single woman undergoing surrogacy must utilize her own eggs and donor sperms to get surrogacy, according to Form 2 under Rule 7 of the Surrogacy Rules, 2022. This requirement is also challenged in the suit filed through Advocate Shyamalal Kumar on March 14, 2023.
Within the plea, it is strongly argued that the notification, lacking a clear rationale, unfairly discriminates against the petitioner. Furthermore, it is highlighted that this action contradicts the established Rule 14.