The Supreme Court on Tuesday sought the Central government’s response on a plea seeking an unmarried woman to be permitted to avail surrogacy as petitioner has challenged the provision of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022, that deny surrogacy to unmarried woman.

A bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan issued notice to the Centre on a petition by one Neha Nagpal – a practising lawyer in the Supreme court – who has contended that the ban on surrogacy for unmarried women violates her right to reproduction, her right to start a family, her right to a meaningful family life and her right to privacy.

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Telling the bench that there were gaps in the current Surrogacy Rules, senior Advocate Saurabh Kirpal, appearing for the petitioner, said that the ban on single women from opting for surrogacy is in breach of Article 14 (right to equality) and Article 21 (right to life).

As Justice Nagarathna said, “We are having a conundrum. How many ART (Assisted Reproductive Technology) procedures have happened in India for unmarried women? We have to see the pulse of Indian society also,”, senior advocate Kirpal said, “My lords may say that, but the fabric of the Constitution has to be maintained. This needs to be heard. I am sure I can convince the court of the merits. We are not pressing for (interim) stay.”

Besides advocate Neha Nagpal, the top court is seized of other PILs challenging the provisions of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022.

Issuing notice to the Central government, the bench in its order said, “In these PILs, the petitioners have challenged the validity of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as well Rules framed under each Act.

 Besides challenging the Section 2(1)(s) [defines “intending woman”] of the Surrogacy (Regulation) Act, 2021 in so far as it prevents an unmarried woman (not widowed or divorced) to avail of surrogacy, the petitioner advocate Neha Nagpal has also challenged Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022. She has also challenged the Amendment Notification of March 14, 2023, which states that a single woman (only widow/divorcee) undergoing Surrogacy must use self-eggs to avail of surrogacy procedure.

The bench was informed that the petitioner advocate Nagpal has also frozen her eggs in December 2022.

Additional Solicitor General (ASG) Aishwarya Bhati told the bench that the issue of unmarried women availing of surrogacy is currently pending before the top court in a larger batch of pleas.

The petitioner advocate in her petition has said that she wants to “secure her right of availing surrogacy and experience motherhood on her terms without State’s interference in her private life. The Petitioner has a right to reproduction and motherhood even without entering a marriage.”

The petition says, “The prohibition on any monetary compensation/ consideration to the Surrogate Mother effectively makes it impossible for the Petitioner to find a Surrogate Mother. The law instead of seeking to regulate surrogacy in effect bans it by imposing the requirement of altruistic surrogacy.”