The Delhi High Court asked the Centre on October 16 to explain the exclusion of single, unmarried women from availing the benefit of the surrogacy procedure under the law.
Noting that an "intending woman" under the Surrogacy (Regulation) Act, 2021 means an Indian woman who is a "widow" or "divorcee", a bench headed by Chief Justice Satish Chandra Sharma questioned the rationale behind associating the marital status of a woman with her eligibility to undergo the procedure.
"Why marital status for intending woman? [Even if] she [the widow or divorcee] has no matrimonial life, why this discrimination?" the bench, also comprising Justice Sanjeev Narula, asked.
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The Centre's lawyer said she would seek instructions on the query.
The lawyer appearing in the court on behalf of the National Medical Commission (NMC), T Singhdev, said he too would examine the issue.
The court was hearing a petition filed by a 44-year-old single, unmarried woman challenging section 2(1)(s) of the Act, which excludes women like herself from availing the surrogacy procedure while only allowing an Indian widow or female divorcee to take the benefit of the same.
The petition has also challenged the regulation that forces a "single woman (widow or divorcee)" to use her own eggs to avail the surrogacy procedure.
The petitioner's lawyer told the court that she could not get married earlier in her life and now, wants to have a child through surrogacy but because of her age, it is medically not advisable to use her own gametes for the procedure and thus, she wants donor female gametes for it.
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To be genetically connected, the petitioner's brother has consented to donate his male gametes, the court was informed.
"[However] what come as an embargo to the petitioner are the provisions of the Act, 2021, which prohibit the petitioner to have a child by way of surrogacy," the petition has stated, adding that the reproduction of a female gamete has no connection with a woman's marital status and the State cannot regulate the reproductive choices of its citizens.
The petition has argued that the restrictions imposed upon single, unmarried women are highly irrational, unlawful, discriminatory and violative of the fundamental rights of the petitioner under articles 14 (right to equality) and 21 (right to life) of the Constitution.
The petition has also objected to the law restricting the age of the "intending woman" between 35 and 45 years to avail the benefit of surrogacy.
"The restriction over the age limits of the 'intending woman' has been decided without any application of mind," the plea has said, highlighting that the age bracket for a woman when a couple intends to opt for surrogacy is stipulated to be between 23 and 50 years.
The matter would be heard next on October 31.
