SURROGACY AND THE RIGHTS OF A SINGLE, UNMARRIED WOMAN 

Opting for surrogacy is often a choice made when a woman is unable to bear children of their own. Babylonian law and custom allowed this practice of surrogacy to avoid divorce. Developments in medical science, change in social customs and legal proceedings together paved the way for surrogacy - a term what we understand in today's world. A large number of ethical questions have been raised over a period of time in the matters concerning social justice, women's right, child welfare etc. Many argue that it leads to the exploitation of women in developing countries whose wombs are commodified to meet the reproductive needs of the more affluent. while others argue that it provides much needed resources to women facing poverty.

WHAT IS SURROGACY

It is a process in which a woman carries and delivers a child for a couple/individual. Surrogate mothers are impregnated through the use of invitro fertilization. A legal contract is required for intended parents and their carrier before the whole process begins. So surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of other person or a couple ( the intended parent/s).

SURROGACY LAW IN INDIA

The Surrogacy  ( Regulation) Act 2021 permits only married couples or only a women who is a widow or a divorcee between the age of 35 to 45 years to have children through surrogacy. It does not allow a single woman or a never married woman to use surrogacy for having children. 

SURROGACY AND THE RIGHTS OF A SINGLE, UNMARRIED WOMAN IN INDIA

In majority of countries where surrogacy is sanctioned , single parent, irrespective of their gender, enjoy the right to engage the services of a surrogate mother, but this is not the case in India. Legal challenges faced by a single woman in India regarding surrogacy requires legal reform to uphold the reproductive rights.

Supreme Court asked whether it is an accepted norm in the Indian society. A single woman bearing a child is an exception and not a rule in Indian society because our society says to have children within the marriage. A single woman bearing a child is outside marriage... That is not an accepted norm of the Indian society  as was observed by the Supreme Court judge J. B.V. Nagarthan orally.

IS THIS AN ACT OF DISCRIMINAION

Limiting the right to become a mother and discriminating  against a woman on the basis of her status of marriage infringes her right to equality Article 14, Right against any discrimination Article 15 and her right to life under Article 21 of the Indian Constitution . Law has made marriage a basis of classification and not discrimination was held by the Supreme court.

NOTED EXAMPLES

Film Producer Ekta Kapoor had a child through surrogacy in 2019 at the age of 43  before the act in question was passed. Karan Johar had twins at the age of 44 and Tushar Kapoor had a son at the age of 39 years.

WAY FORWARD

The provision of the Act infringes with the Fundamental Rights  of an individual and also the basic Human Rights of an individual to built a family recognized by the United Nations. Simultaneously, it also violates the reproductive rights of the a woman.

Marital status requirement under the provision of the Act is mandatory for a woman to be eligible for this act. Presuming that later she gets divorced she still be eligible under this Act to surrogate. Divorce does not ceases her right though she becomes a single individual and later would be single parent and the marriage per-se does not exists

The Supreme Court has advised ways to get off the present problem by suggesting adoption instead of surrogacy.  How an adopted child would be different from surrogate child, it poses a larger question for introspection. Child would remain a child whether adopted or surrogate. When the court suggests adoption as an alternative to make a family then the drawbacks associated with single parenting will come into operation. Actress Sushmita Sen has adopted two daughters and she is looking after the children well even though been a single parents.

Law needs to evolved with the times and certainly  The Surrogacy  ( Regulation) Act 2021
needs to be amended to suit the present times. When the Hon'ble Courts are recognizing Live in relationships and giving legal recognition to the children born out of this relationship does this live in relation can be termed strictly as marriage. Can it be concluded that live in relations are equivalent to marriages. 

 
If marriage is the essential criteria for  children then what about those married couple who opt not to have kids , how would court view this aspect. 

The Act itself restricts not only the single woman but also single men, live-in and same sex couple, thereby omitting a large section of the percentage of people prohibiting them to fall under the ambit of Surrogacy Act 2021. The Act should be inclusive in nature and include all sections who are excluded to cater to the modern times.

- Adv. MAMTA SINGH SHUKLA