According to the Surrogacy Regulation Act, only those women who are widowed or divorced and between the age of 35 to 45 years can avail the surrogacy route. This implies that a single unmarried woman is not allowed to become a mother through surrogacy.

New Delhi: The Supreme Court on Monday (February 5) said that the institution of marriage needed to be protected unlike the West, where children are born outside of marriage, while hearing a petition on allowing surrogacy for unmarried women.

The bench, comprising Justices B.V. Nagarathna and Augustine George Masih, expressed its reservation while hearing the petition of a 44-year-old woman who approached the court seeking permission to become a mother through surrogacy, the Times of India reported.

According to the Surrogacy Regulation Act, only those women who are widowed or divorced and between the age of 35 to 45 years can avail the surrogacy route. This implies that a single unmarried woman is not allowed to become a mother through surrogacy.

“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. 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 observed.

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 which prevents single women from opting for surrogacy.

The bench said that there were other ways to become a mother and advised the woman to get married or consider adoption. However, the woman’s lawyer said that his client did not want to get married and 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.” “Science has advanced but not the social norms and that is for some good reason,” the court said.

It may be noted that film producer Ekta Kapoor had a child through surrogacy in 2019 at the age of 43, before the act in question was passed. Her brother Tushar Kapoor had a son in 2016 at the age of 39 and film director Karan Johar had twins, who he co-parents with his 80-year-old mother, at the age of 44. All three individuals opted for surrogacy without being married.

Challenging the provision, the petitioner’s lawyer said that the law was discriminatory. “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 UN and reproductive rights… recognised as an aspect of personal liberty under Article 21,” the petition said.

He added that a single woman could also get married just to be eligible under the Act and get divorced after some time. But the bench said that 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.