In a landmark development, the Supreme Court of India has taken cognizance of a plea challenging the Surrogacy (Regulation) Act 2021 and its associated rules. The plea, filed by a 38-year-old single and unmarried woman, questions the restrictions imposed on surrogacy for women in similar circumstances. This article explores the legal nuances of the case, delving into the petitioner’s argument, the government’s response, and the broader implications for reproductive rights in India.

  1. The Plea before the Supreme Court

Neha Nagpal, represented by senior advocate Saurabh Kirpal, argues that the Surrogacy (Regulation) Act’s prohibition on single, unmarried women from availing surrogacy services is arbitrary and infringes on their fundamental right to privacy. The petitioner emphasizes the right to procreation and motherhood, asserting that these rights extend to assisted reproductive technologies and surrogacy. The legal challenge brings to light the struggles faced by the petitioner, a diabetic woman for whom surrogacy is the only viable option for starting a family.

Legal Issues at the Core

The petitioner’s challenge focuses on Section 2(1)(s) of the Surrogacy (Regulation) Act, which restricts surrogacy access to divorced or widowed women, excluding single, unmarried women. The plea contends that the Act violates the right to equality (Article 14) and the right to life (Article 21) by discriminating based on marital status. Additionally, the prohibition on financial compensation to surrogate mothers is highlighted as a significant hurdle, making it challenging for intending parents to find suitable candidates.

Challenging Sections of the Surrogacy (Regulation) Act

The plea takes aim at Section 2 (1) (zg) of the Surrogacy (Regulation) Act and Form 2 of the Surrogacy (Regulation) Rules, 2022. These provisions prohibit the use of donor eggs and mandate that single women can only use their eggs, a restriction the petitioner argues infringes on reproductive rights, family life, and privacy.

Judicial Response and Delhi High Court’s Perspective

In response to the legal challenge, the Additional Solicitor General argued that single, unmarried women can still use assisted reproductive techniques (ART) for conception. However, Justice Nagarathna questioned the prevalence of ART procedures among unmarried women in Indian society, emphasizing the need to understand societal dynamics.

The Delhi High Court, in a separate case, questioned the exclusion of single, unmarried women from surrogacy laws, stating that such discrimination based on marital status is discriminatory and currently reviewing the petitioner’s plea.

Relevant Provisions and Challenges

The article provides an overview of the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021. It highlights the challenges and limitations posed by these laws, including the exclusion of unmarried women and LGBTQ individuals from surrogacy rights.

Conclusion

As the Supreme Court grapples with the complex intersection of legislative intent and individual rights, it becomes imperative to address the discriminatory aspects of the Surrogacy (Regulation) Act. The ongoing legal challenge underscores the need for a nuanced and inclusive approach to surrogacy laws in India, aligning them with the principles of equality and individual freedom. The article concludes by emphasizing the importance of the court’s response in shaping the future of reproductive rights in the country.