NEW DELHI: The Supreme Court on Tuesday agreed to examine a plea for quashing a provision of the surrogacy law that bars single unmarried women from having children through surrogacy.
A bench of Justices BV Nagarathna and Ujjal Bhuyan issued notice to the Centre and sought its response to the petition filed by SC lawyer Neeha Nagpal, who stated that women should be allowed to have a child without being married.
When the petition was initially taken up for hearing, the judges were not inclined to hear it, but when the court was apprised of the fact that the petitioner, Nagpal, had frozen her eggs, the bench eventually decided to examine the issue and sought the central government's response in the matter.
Senior Advocate Saurabh Kirpal represented Nagpal in her writ petition challenging Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021. The petitioner, a single and unmarried woman, contested the provision that excludes unmarried women (not widowed or divorced) from surrogacy.
Nagpal informed the court of her unmarried status and egg-freezing in December 2022. Her challenge extended to the March 14, 2023 Amendment, mandating single women (only widows or divorcees) in surrogacy to use self-eggs.
The petition questioned the distinction between unmarried and divorced/unwidowed women, asserting that both are single. Allowing surrogacy for either group would result in single motherhood.
Nagpal cited various Supreme Court verdicts recognizing the right to reproduction beyond natural conception, encompassing access to scientific advancements like surrogacy and assisted reproductive technologies. Failure to acknowledge these options, the plea argued, would render the right to reproduction and motherhood meaningless.
Even there is no rational nexus of such classification with the object of the Act, as the object of the Surrogacy Act is to create a framework of boards and authorities to regulate surrogacy procedures, the prevention of potential exploitation of surrogates, and the protection of the rights of the child born through surrogacy, the petitioner said.
"Thereby, the writ petition prays for a relief to set aside the notification and certain provisions of the Surrogacy (Regulation) Act, 2021, being violative of Articles 14 and 21 of the Constitution," the petitioner said.