LI Network
Published on: February 11, 2024 at 12:59 IST
The Supreme Court has taken cognizance of a plea challenging the constitutionality of Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021, which precludes unmarried women from participating as surrogate mothers.
The case, titled Jaswinder Kaur v. Union of India, was filed by a 44-year-old unmarried woman, asserting that the provision is discriminatory and violates her fundamental rights under Articles 14 and 21.
According to the contested provision, only Indian women aged between 35 to 45, who are widows or divorcees, qualify as “intending women” for surrogacy.
The petitioner argues that this restriction is irrational and unlawfully discriminates against unmarried women.
During the hearing, a Bench comprising Justices BV Nagarathna and Augustine George Masih expressed concerns about societal norms, emphasizing the traditional institution of marriage for motherhood. Justice Nagarathna remarked, “You decided not to marry… It is a norm here to become a mother within the institution of marriage.”
The Court acknowledged societal changes brought about by scientific advancements but questioned whether the institution of marriage should be preserved.
Justice Nagarathna emphasized that India is not akin to Western countries and stressed the importance of protecting the institution of marriage.
The plea, represented by Advocate Shyamalal Kumar, also challenges a March 14, 2023, amendment notification requiring single women undergoing surrogacy to use their own eggs and donor sperms.
The petitioner argues that this notification lacks rationale, is discriminatory, and contradicts Rule 14 of the Surrogacy Rules, 2022.
As the Supreme Court issues notice to the Central government, the case raises important questions about the intersection of surrogacy laws, individual rights, and societal norms in India.
The Court’s scrutiny of the Surrogacy (Regulation) Act and related rules may have significant implications for unmarried women seeking to access surrogacy services.