Supreme Court To Decide If Bar On Divorced & Single Men From Availing Surrogacy Is Constitutional

The Supreme Court is set to consider the issue of whether a divorced man should be allowed to have a child through surrogacy. The writ petition filed by a 45 year old divorced single man has challenged the constitutional validity of S.2(1)(s) of the Surrogacy (Regulation) Act, 2021. The bench of Justice BV Nagarathna and Justice KV Vishwanathan agreed to consider the matter and issue notice in the same. Notably, the same bench is also scheduled to consider a batch of petitions challenging the Surrogacy (Regulation) Act, 2021 and Surrogacy (Regulation) Rules, 2022 on the specific issue of upper-age limit.It is the case of the petitioner that S. 2(1)(s) the Act only allows widowed and divorced women within the age of 35-45 years to avail surrogacy and arbitrarily excludes divorced men who want to exercise their right to reproductive autonomy. The plea stresses that "Such blatant exclusion of single men constitutes a discriminatory classification lacking any rational nexus to the object sought to be achieved by the legislation. It is a case of manifest arbitrariness, violating the Petitioner's fundamental rights under Articles 14, 19, and 21 of the Constitution of India." Terming such a gendered exclusion as 'regressive', the petition reasons that such provision is not based on any scientific or logical reasoning and only deepens the patriarchal mindset on 'motherhood'. "The denial of surrogacy rights to the Petitioner is not based on any scientific, logical, or child welfare considerations— rather, it is a regressive, exclusionary policy rooted in outdated patriarchal norms. It has been observed by Robert Brown that “All love begins and ends with motherhood by which a woman plays the god, glorious it is as the gift of the nature, being both sacrosanct and sacrificial, though now again, science has forced us to alter our perspective of motherhood”. The State has no compelling interest in restricting surrogacy based on gender or marital status, making such exclusion unjustifiable, oppressive, and unconstitutional."The plea contends that denying divorced men the right to avail surrogacy strikes at the heart of Article 14, 15 and 21. On Violation of Article 14 : "Parenthood, however, is not a privilege conferred upon a particular gender but a fundamental right rooted in the principles of equality, dignity, and autonomy. The impugned provision, by allowing surrogacy for divorced women while denying the same right to divorced men, fails the twin test of classification under Article 14 and stands manifestly arbitrary as expounded in Shayara Bano v. Union of India"On Violation Of Article 15(1) : "The preferential treatment granted exclusively to married Indian couples under the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, constitutes an unjustifiable form of discrimination that directly violates Article 15(1) of the Constitution of India." "By restricting access to surrogacy and ART procedures solely to married heterosexual couples, the law implicitly reinforces archaic gender roles, denying individuals—especially single men, unmarried women, and divorced individuals—their fundamental reproductive rights. This legal exclusion is not based on any compelling state interest or rational nexus to child welfare but is instead rooted in outdated and patriarchal presumptions about who qualifies as a 'legitimate' parent." On Violation of Article 21 : The petition relies on the decision in K.S. Puttaswamy v. Union of India, which "unequivocally recognized that reproductive choices form an intrinsic facet of privacy and that every individual possesses the autonomy to make decisions regarding parenthood without unwarranted State interference." It also refers to Suchita Srivastava v. Chandigarh Administration which held that reproductive autonomy is a fundamental right under Article 21. This right extends to both men and women, allowing them to make decisions concerning procreation, family life, and parenthood. Thus, exclusion of single and divorced men from surrogacy violates their bodily autonomy and restricts their choice to exercise reproductive freedom. "The exclusion of single and divorced men from surrogacy directly impinges upon their fundamental right to make reproductive choices and imposes an unreasonable restriction on their bodily integrity and dignity. Parenthood is a deeply personal decision, and the State cannot arbitrarily deny access to reproductive technologies based on gendered stereotypes or marital status-based discrimination." Contradictory Laws On Parenting: The plea notes that while The Juvenile Justice (Care and Protection of Children) Act, 2015, and Section 7 of the Hindu Adoption and Maintenance Act, 1956, explicitly allow single men to adopt children, here the law recognises that "parenthood is not contingent upon marital status."However, the denial of surrogacy rights to men contradicts this recognition by the above laws. The plea also relies on...

Supreme Court To Decide If Bar On Divorced & Single Men From Availing Surrogacy Is Constitutional

Anmol Kaur Bawa

Tags