The court issued a notice to the Centre on a petition filed by a practising lawyer Neeha Nagpal who said that the law impacts the right to reproduction.
In response to a petition challenging the legislation that prevents single, unmarried women from obtaining surrogacy, the Supreme Court requested the Center’s response on Tuesday. In response to a plea filed by an attorney in practice, Neeha Nagpal, the bench of justices BV Nagarathna and Ujjal Bhuyan issued a notice to the Center, stating that the law affects women’s rights to reproduction and motherhood and denies them the opportunity to have a meaningful family life.
This is a vilation to right to Privacy
Senior attorney Saurabh Kirpal, representing the petitioner, informed the court that only divorced or widowed women are eligible to use surrogacy under Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021. The petitioner, who is roughly forty years old, has been told that getting pregnant would be difficult because she has diabetes.
Kirpal said, “The Act by restricting surrogacy to only those women who have ever been married even though they may now be divorced or widowed violates the petitioner’s right to privacy. There is no rational nexus between imposition of this requirement of having once been married with the object of the Act which is solely to prevent commercial surrogacy.”
Supreme Court: Unmarried woman has a right to surrogacy
He stated that as surrogacy is the petitioner’s sole practical means of having a child and a family of her own, the Government may take this legal challenge under consideration and provide a response.
He said, “An unmarried woman has a right to reproduction and motherhood even without entering a marriage. Section 2(1)(s) of the Act is manifestly arbitrary and irrational as there is no restriction on a single, unmarried woman adopting a child or having a child out of wedlock.”
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Here’s what Centre has to say
Aishwarya Bhati, the Additional Solicitor General (ASG), represented the Center in court. She stated that the law is altruistic and focused on the child’s best interests, requiring that both gametes (reproductive cells) originate from the intended spouse undergoing surrogacy. In order to receive the operation, a widow or divorcee must use her own eggs and donor sperm.
The petitioner told the court that she had frozen her eggs and that it is illegal to limit surrogacy to women who have previously been married, as this infringes her right to privacy.
The petition filed through advocate Malak Manish Bhatt said, “The right to a meaningful family life, which allows a person to live a fulfilling life and helps in retaining her physical, psychological and emotional integrity falls within the ambit of Article 21 of the Constitution. Hence, the restriction of surrogacy to only divorced and widowed women is in violation of Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution.’
It also questioned the ban on paying the surrogate mother money, which practically prevents the petitioner from finding a surrogate mother.
