Introduction

The legal framework governing surrogacy in India has increasingly come under scrutiny as demands for reproductive autonomy grow, particularly among single women. Recent developments, including ongoing litigation before the Supreme Court, have brought to light the inherent discrimination embedded within the Surrogacy (Regulation) Act, 2021. This legislation primarily restricts access to surrogacy to married couples and a narrow category of single women — namely, divorcees or widows aged between 35 and 45 years. Against this backdrop, this article examines the complex legal, social, and policy challenges faced by single women in their pursuit of reproductive rights through surrogacy.

Case Background

• The ongoing legal challenge centers around a petitioner, a 36-year-old woman at the time of filing in 2023, who is a divorcee and mother to two biological children. Following a mutually consented divorce finalized in 2017, custody of her children was granted to her ex-husband, with whom they now reside. The petitioner has not maintained a relationship with her biological children since the divorce, effectively severing the mother-child bond.
• The petitioner underwent a hysterectomy in 2012, which resulted in the removal of her uterus, rendering her incapable of carrying a child. Motivated by a desire to experience motherhood once again, she consulted medical professionals who advised her to pursue surrogacy, as her eggs remained viable for use. Financially stable, self-sufficient, and having chosen not to remarry, the petitioner now seeks to assert her reproductive rights through legal channels.

Judicial Developments

The Supreme Court is currently hearing a petition that challenges the constitutionality of the restrictive provisions in the Surrogacy (Regulation) Act, 2021, arguing that they discriminate against single women on the basis of marital status. During preliminary hearings, the Court suggested alternative paths such as adoption or remarriage for the petitioner but also pointed to prevailing societal expectations that children should ideally have a "father figure." These remarks highlight the deep-seated societal and judicial biases toward traditional family structures.

Understanding Surrogacy

Surrogacy is the practice whereby a woman bears and gives birth to a child for an intending couple, with the intent of handing over the child post-birth.

Types of Surrogacy

Surrogacy arrangements are broadly classified into two main categories:

• Altruistic Surrogacy:
  Altruistic surrogacy involves no monetary compensation for the surrogate mother beyond essential medical expenses and insurance coverage during the pregnancy. Typically, such arrangements are motivated by empathy, familial bonds, or altruistic intent.
• Commercial Surrogacy:
  Commercial surrogacy, on the other hand, entails financial remuneration to the surrogate that exceeds the costs of medical care and insurance. This form of surrogacy has been criticized for potentially leading to the exploitation of women, commodification of reproductive capabilities, and ethical concerns around the commercialization of childbirth.

Recognizing the ethical concerns, India banned surrogacy for foreign nationals in 2015 and subsequently prohibited all forms of commercial surrogacy through legislative measures.

Current Legal Framework: The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, currently governs all aspects of surrogacy in India. Key provisions under the Act include:

• Definition of Surrogacy (Section 2(zd)):
  Defined as a practice whereby a woman bears and gives birth to a child for an intending couple, intending to hand over the child after birth.
• Definition of Intending Couple (Section 2(r)):
  Refers to a married couple diagnosed with a medical condition necessitating gestational surrogacy.
• Definition of Intending Woman (Section 2(s)):
  Refers specifically to an Indian woman who is either a widow or a divorcee between the ages of 35 and 45 years, intending to avail of surrogacy.

Notably, the High Court observed that while the Act defines an "intending woman," the core definition of surrogacy itself primarily centers around an "intending couple." This raises significant interpretational challenges when single women seek access to surrogacy services.

Regulation of Surrogacy

The Act mandates several important regulatory measures:

• Prohibition of Commercial Surrogacy:
  The Act unequivocally bans commercial surrogacy to prevent exploitation and promote ethical practices.
• Promotion of Altruistic Surrogacy:
  Only altruistic surrogacy arrangements are permitted under the law, emphasizing voluntary, non-commercial participation.
• Mandatory Registration of Clinics:
  All clinics offering surrogacy services must be registered and are subject to regulatory oversight to ensure compliance.
• Conditions for Permissible Surrogacy:
• The intending couple must demonstrate a proven medical need for gestational surrogacy.
• The process must not involve the production of children for sale, prostitution, or other exploitative purposes.
• The surrogacy arrangement must conform to specific medical conditions outlined by regulatory authorities.

Broader Societal Biases against Single Women

Single women in India, despite forming a significant and rapidly growing demographic, continue to grapple with systemic discrimination and social prejudice:

• Stereotyping:
  Single women are often subjected to negative stereotypes, including perceptions of immaturity, selfishness, or emotional instability.
• Legal Disadvantages:
  Many reproductive health laws, while progressive in certain aspects, fail to adequately address the needs of single women:
• The Medical Termination of Pregnancy (Amendment) Act, 2021 expanded abortion access but did not explicitly recognize never-married women as beneficiaries.
• Access to safe abortion remains fraught with barriers, largely due to the reluctance of medical practitioners and the absence of clear legal protections for single women.

These legal shortcomings create structural disadvantages for single women, sharply contrasting with the relatively easier legal avenues available to married or formerly married women.

International Perspectives and Evolving Norms

Globally, traditional assumptions about the necessity of a "father figure" in child-rearing are being increasingly challenged:

• In the United Kingdom, institutions like the Royal College of Obstetricians and Gynaecologists have advocated removing the "need for a father" criterion in fertility treatments, promoting instead the idea of "supported parenting."
• Indian courts too have begun embracing more inclusive interpretations of family. In its 2022 Deepika Singh judgment, the Supreme Court acknowledged the legitimacy of atypical family structures, extending the concept of "family" beyond the confines of traditional nuclear units.

Demographic Shifts and the Need for Reform

India’s demographic trends further underscore the urgent need for legal reform:

• According to Census data, the number of single women increased from 51.2 million in 2001 to over 71 million in 2011, marking a 39% rise.
• Projections suggest that this figure could surpass 100 million in the forthcoming census.

Given the scale and growing visibility of this demographic group, there is an urgent need to extend reproductive rights—including access to surrogacy, fertility treatments, and safe abortion services—to single women without discrimination.

Conclusion

The ongoing case brings to the forefront pressing issues surrounding reproductive rights, constitutional interpretation of the Surrogacy (Regulation) Act, 2021, and the evolving aspirations of single women seeking motherhood. It underscores the broader tension between safeguarding against the exploitation of surrogacy and ensuring equitable access to reproductive autonomy. As the Supreme Court deliberates, its forthcoming judgment is poised to play a pivotal role in shaping the future of reproductive rights and family law in India, with profound implications for gender equality and personal liberty.