The Surrogacy (Regulation) Act, 2021 reinforces the idea of family as a heterosexual and patriarchal institution as it excludes queer persons and unmarried single parents from the purview of the law.
The Supreme Court has sought the Centre’s response on the provisions in the Surrogacy (Regulation) Act, 2021 that excludes single unmarried women from availing the right to have a surrogate baby. The law has limited the right to avail surrogacy only to single women who are either divorced or widowed. The petitioner, a single unmarried man, has argued that this is discriminatory and violates the fundamental rights under Articles 14 and 21 of the Constitution of India.
Single parents are entitled to parenthood both through assisted reproductive technology (ART) and adoption, but they are barred from availing the service of a surrogate mother. The Select Committee of the Parliament in its report submitted in 2019 rationalises this decision as one taken in the “best interest of the child”.
“The marriage is an institution where both partners have the mutual legal responsibility on child and vice versa. In case of married couple, the responsibility of upbringing a child is equally shared by both the parents. Although the aforesaid view cannot be accepted as there are conditions under which a single person genuinely needs to avail surrogacy option to have child. One such situation is young age widow, who is otherwise capable but cannot carry child because of fear of social stigma attached to pregnancy of a widow in our society. One cannot explain everyone that the child in her own womb is of surrogacy and therefore such single person should be given option of surrogacy within permitted regulation under the Bill. Similar situation is of a divorced lady who doesn't want to remarry but wants child,” states the report.
The Select Committee of the Parliament was of the view that under the ART Act, 2021, a woman would be bearing the child herself, therefore there are more chances of her taking care of the child borne through ART services. In other words, the Committee alludes that the single unmarried woman might abandon the child as she had not carried the baby in her womb. The petitioner argue that such moral anxieties which have no place under the rule of law cannot be the basis of formulating a rule.
Surrogacy —either commercial or altruistic— has not been approved by many countries, including France, Italy, Japan, Spain, and Sweden. In Australia, Canada, Israel, the Netherlands, the UK, Portugal, South Africa, Belgium, New Zealand and Thailand, altruistic surrogacy is approved by law. On the other hand, commercial surrogacy is legal in a few countries like Russia, Ukraine, and some states in the United States.
In most of the countries where surrogacy is legal —either altruistic or commercial— single parents irrespective of gender are not deprived of the right to avail the service of a surrogate mother for being a parent.
In the UK, the law was amended in 2019 to enable single parents to become legal parents of babies born through surrogacy. According to UK law, the surrogate mother is the legal parent of the child at birth. The intending parents have to obtain a parental order to accomplish their legal status as the parents of the baby. The law does not discriminate between single men and women to obtain parental order under the law. In the United States, single parents irrespective of their sexual orientation are allowed to avail the service of a surrogate mother to accomplish their desire for parenthood.
Not only the exclusion of single parents but many other provisions of the Surrogacy Act have been challenged in various courts in India.
In October, the Supreme Court allowed a woman to undergo surrogacy by using a donor egg which is prohibited by the Surrogacy Act. The amendment brought in March specified that donor eggs cannot be used for gestational surrogacy for the intending couple. The petitioner, suffering from a congenital disorder cannot produce eggs and thus wanted to go for gestational surrogacy which is the only means of being a biological parent.
In a ruling in November, the Karnataka High Court permitted a group of couples to pursue surrogacy using donor gametes despite the law’s disapproval of such a practice. The court entertained a batch of petitions and granted permission to 13 couples to engage in surrogacy using donor gametes, which refers to individuals providing sperm or oocytes. The bench highlighted that the recent amendment to the surrogacy rules, which prohibits using donor eggs for gestational surrogacy by intending couples, could be relaxed based on individual circumstances on a case-to-case basis.
Similarly, in an order in October, the Delhi High Court observed that preventing the use of donor gametes for intending couples seeking surrogacy appears, at first glance, to infringe upon the fundamental rights of a married infertile couple to parenthood. The court reasoned that this prohibition denies them access to legally and medically regulated procedures and services essential for their parenthood aspirations.
The Surrogacy (Regulation) Act and corresponding rules reinforce the idea of family as a heterosexual and patriarchal institution as it excludes queer persons and unmarried single parents from the purview of the law. The law also does not acknowledge the right of a couple in a live-in relationship to avail surrogacy to achieve parenthood.