New Delhi: The Supreme Court Tuesday sought the Centre’s response on a plea seeking quashing of a provision of the surrogacy law, which bars single unmarried women from having children through surrogacy.
Senior advocate Saurabh Kirpal, representing the petitioner Neeha Nagpal, who is a practising lawyer, submitted before a bench comprising Justices BV Nagarathna and Ujjal Bhuyan that massive gaps exist in the current surrogacy rules, which violates Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution. Additional solicitor general Aishwarya Bhati, representing the Centre, contended that the issue of single unmarried women opting for surrogacy is pending before a larger bench.
The petitioner’s counsel stressed that the matter needs to be heard as it involves a larger constitutional question. After hearing submissions, the apex court issued notice to the Centre and sought its response. The plea, filed through advocate Malak Manish Bhatt, citing section 2(1) (s) of the Surrogacy (Regulation) Act, 2021, said it bars single, unmarried women from availing themselves of the benefits of surrogacy while allowing the same for divorced/widowed women.
“The Petitioner has a right to reproduction and motherhood even without entering a marriage. The Petitioner has a diabetic condition and is approx. 40 years of age and has been informed that pregnancies above 36 years of age are termed as geriatric pregnancies and involve complications especially in diabetic patients….”, said the plea. The plea contended that the petitioner wants to secure her right to avail herself of surrogacy and experience motherhood on her terms without the state’s interference in her private life.
The plea contended that the manifest arbitrariness and irrationality are clear from the fact that there is no restriction on a single, unmarried woman adopting a child or having a child out of wedlock. “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,” said the plea.
The plea said the provision violates the petitioner’s right to reproduction, right to meaningful family life and right to privacy, all of which are facets of the fundamental rights under Article 21 of the Constitution.
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