Indian Supreme Court denies single woman right to surrogacy saying institution of marriage under threat
India's Supreme Court on Monday said the institution of marriage has to be protected and preserved in the country and cannot go on the lines of Western countries where children being born outside of marriage is not uncommon, while expressing its reservations about allowing unmarried women to become mothers through surrogacy.
While hearing the petition of a 44-year old unmarried woman who approached the court seeking permission to become mother through surrogacy, which is not allowed under India's law, a bench of Justices BV Nagarathna and Augustine George Masih said a single woman bearing a child outside marriage was not the rule in Indian society, but an exception, reports Times of India.
"It is a norm here to become a mother within the institution of marriage. Being a mother outside the institution of marriage is not the norm. We are concerned about it. We are speaking from the point of view of (the) child's welfare.
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"Should the institution of marriage survive or not in the country? We are not like western countries. The institution of marriage has to be protected. You can call us and tag us conservative, and we accept it," Justice Nagarathna said.
The petitioner, who works with a multinational company, approached the court through her lawyer Shayamal Kumar challenging the validity of Section 2(s) of the Surrogacy (Regulation) Act of India which defines "intending woman" as an Indian woman who is a widow or divorcee between the age of 35 and 45 years and intends to avail the surrogacy option. This implies that a single unmarried woman is not allowed to become a mother through surrogacy.
At the outset of the hearing, the bench told the woman that there were other ways to become a mother and suggested that she could get married or adopt a child. But her lawyer responded that she didn't want to marry and also that the waiting period for adoption was very long.
Remarking that the institution of marriage could not be thrown out of the window, the bench said, "It is difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life. Your client preferred to remain single.
"We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers."
Challenging the provision, the petitioner lawyer submitted that it was discriminatory as a single woman could also get married just to be eligible under the Act and after some time she could get a divorce. However, the bench said it wasn't so easy.
The court said it would hear her petition along with a batch of other petitions challenging other provisions of the Act.
"The restrictions are wholly discriminatory and without any rational or reason... the said restrictions not only infringe on the fundamental rights of the petitioner but are also violative of basic human rights of an individual to found a family as recognised by the United Nations and reproductive rights... recognised as an aspect of personal liberty under Article 21," the petition said.
