Surrogacy and the Rights of a Single, Unmarried Woman in India: Legal Challenges and Reproductive Rights

👶 Surrogacy and the Rights of a Single, Unmarried Woman in India

Exploring the legal challenges, social norms, and reproductive rights under the Surrogacy (Regulation) Act 2021

🌐 Introduction

Surrogacy has long provided a pathway for women who cannot conceive naturally to become parents. Historically, even Babylonian law permitted surrogacy to prevent divorce. Today, advances in medical science, evolving social norms, and legal reforms have shaped modern surrogacy.

However, this progress has raised ethical, social, and legal questions regarding women’s rights, child welfare, and social justice. Critics argue that surrogacy can exploit women in developing countries, while supporters see it as a necessary resource for women facing infertility or social barriers.

👶 What Is Surrogacy?

Surrogacy is a process where a woman (the surrogate) carries and delivers a child for another individual or couple (the intended parents). IVF (In-Vitro Fertilization) is typically used, and a legal contract is signed before the process begins.

The surrogate mother agrees to carry the pregnancy and return the child to the intended parents, making the intended parents the legal guardians of the child.



⚖️ Surrogacy Law in India

The Surrogacy (Regulation) Act 2021 permits surrogacy only for married couples or women who are widows or divorcees aged 35–45.

  • Single women or never-married women are explicitly excluded.

  • Single men, live-in couples, and same-sex couples are also prohibited from accessing surrogacy under the current law.



🧑‍⚖️ Single Women and Surrogacy Rights

In many countries where surrogacy is legal, single individuals, regardless of gender, can access surrogacy services.

In India, however, the law is restrictive. The Supreme Court has observed that single women bearing children is not considered a social norm, and surrogacy outside marriage is viewed as an exception, not the rule (Oral observation by Justice B.V. Nagarathna).

⚖️ Is This Discrimination?

Limiting surrogacy based on marital status may violate fundamental rights:

  • Article 14: Right to equality

  • Article 15: Right against discrimination

  • Article 21: Right to life and personal liberty

The law currently classifies eligibility based on marital status, which some argue constitutes discrimination against single women.


🌟 Notable Examples

Several public figures have successfully had children through surrogacy prior to the 2021 Act:

  • Ekta Kapoor (2019) – aged 43

  • Karan Johar – twins at 44

  • Tushar Kapoor – son at 39

These cases demonstrate that reproductive choices outside strict marital norms are increasingly common and socially relevant.

🛤️ Way Forward

The Act infringes upon fundamental and human rights, limiting reproductive freedom for single women. While adoption is suggested as an alternative, a surrogate or adopted child remains equally deserving of parental care.

Legal reforms are needed to:

  • Recognize live-in relationships and children born from them

  • Include single parents, same-sex couples, and unmarried individuals in surrogacy eligibility

  • Uphold reproductive rights as a basic human right

🧭Conclusion

The Surrogacy (Regulation) Act 2021 currently excludes a significant portion of the population based on marital status. Evolving judicial interpretations, modern social realities, and UN-recognized rights to build a family demand a more inclusive approach.

Amending the Act is essential to ensure equality, reproductive freedom, and the right to parenthood for all women, irrespective of their marital status.



✍️ Author’s Note

By Adv. Mamta Singh Shukla
Advocate, Supreme Court of India | Legal Researcher | PoSH Trainer

Follow for insights on Cyber Law, Digital Evidence, and Legal Awareness.

🔗 Related Posts & Internal Links

#SurrogacyIndia #SingleWomenRights #ReproductiveRights #SurrogacyLaw2021 #HumanRights #Article14 #Article21 #WomenEmpowerment #LiveInRelationships #AdoptionVsSurrogacy #LegalReform #EqualityForAll


      
















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