Challenging Surrogacy Laws: Supreme Court Questions Exclusion of Unmarried Women

In a significant legal development, the Supreme Court has initiated proceedings on a petition challenging the constitutionality of Section 2(1)(s) of the Surrogacy (Regulations) Act, 2021, which restricts unmarried women from becoming surrogate mothers. The case, titled *Jaswinder Kaur v. Union of India*, has drawn attention to the exclusionary nature of the provision, allowing only widowed or divorced Indian women aged 35 to 45 to qualify as "intending women" for surrogacy.

The petitioner, a 44-year-old unmarried woman, asserts that this provision is not only "highly irrational" but also infringes upon her fundamental rights under Articles 14 and 21. The plea argues against the discriminatory nature of the law, emphasizing its violation of constitutional guarantees.

During the hearing, the bench, comprising Justices BV Nagarathna and Augustine George Masih, expressed concerns about societal norms, with Justice Nagarathna highlighting the prevailing expectation of motherhood within the institution of marriage. Justice Nagarathna remarked, "Science may have evolved but society has not," underlining the court's consideration of the societal paradigm in India. The bench emphasized the protection of the institution of marriage, distinguishing India from Western countries.

The petition, represented by Advocate Shyamalal Kumar, also challenges a March 14, 2023, amendment notification. This notification, linked to Form 2 under Rule 7 of the Surrogacy Rules, 2022, mandates that single women undergoing surrogacy must use their own eggs and donor sperm. The petitioner argues that this requirement lacks rationale, is discriminatory, and contradicts Rule 14 of the Surrogacy Rules, 2022.

This legal challenge brings into focus the evolving landscape of surrogacy laws in India, prompting a critical examination of the intersection between legal frameworks and individual reproductive rights. The Supreme Court's inquiry into the constitutional validity of these provisions sets the stage for a nuanced legal discourse on the evolving contours of family and reproductive rights.

Author: Anushka Taraniya

News Writer, MIT ADT Univresity