Surrogacy And The Rights Of Single, Unmarried Women In India 

For those falling outside the conventional ‘Indian family’ mould, parenthood remains a dream. In India, if you’re single, unmarried, or queer, surrogacy for having a biological child is a no-go. 

Recently the Delhi High Court weighed in, saying the court wasn’t keen on promoting the surrogacy scene in India, fearing it might balloon into a billion-dollar business. This discussion came up during a case brought by an Indian couple living in Canada. Their dream of becoming parents hit a roadblock when the government issued a notification banning donor surrogacy earlier this year.

Under the Surrogacy (Regulation) Act, 2021, widows, divorced women aged 35 to 45, and infertile couples can opt to have a child through surrogacy while the only other option for others to become parents is through assisted reproductive technology (ART) and adoption. The Parliament’s Select Committee, in its 2019 report, rationalises this restriction as being in the “best interest of the child”, alluding that a single unmarried woman might abandon the child as she had not carried the baby in her womb.

Despite these challenges, there is a glimmer of hope. On December 5, the Supreme Court agreed to examine a plea for quashing a provision of the surrogacy law, which bars single unmarried women from having children through surrogacy. This development signals a potential reevaluation of the existing restrictions, bringing a ray of hope for those previously excluded from surrogacy options.

Across the globe, the acceptance of surrogacy, be it commercial or altruistic, varies significantly. Nations like France, Italy, Japan, Spain, and Sweden have yet to give their nod to surrogacy in any form. On the flip side, countries such as Australia, Canada, Israel, the Netherlands, the UK, Portugal, South Africa, Belgium, New Zealand, and Thailand have embraced altruistic surrogacy under legal frameworks.

Interestingly, in the majority of countries where surrogacy is sanctioned, single parents, irrespective of their gender, enjoy the right to engage the services of a surrogate mother, reinforcing a universal approach to supporting individual paths to parenthood.

Last year Outlook explored the two contentious issues arising out of reproductive rights for women in India: surrogacy and abortion. Now, we once again look at the importance of safeguarding women’s reproductive rights and the impact of recent legal developments in India.

Though India was among the first countries in the world to develop legal and policy frameworks that guarantee access to abortion and cont­r­aception, there are imp­e­diments in women and girls exercising their complete reproductive rights