Supreme Court Questions Surrogacy Law Exclusions for Single Women and Transgender Persons

The Supreme Court on Monday issued a notice to the Central government in response to a public interest litigation (PIL) challenging the exclusion of single unmarried women and transgender persons from the Surrogacy (Regulation) Act, 2021. The PIL, filed by Dr. Aqsa Shaikh, a 41-year-old transwoman and activist, argues that this exclusion is unconstitutional and discriminatory.

A division bench of Justice BV Nagarathna and Justice Dipankar Dutta sought responses from the Union of India through the Ministry of Health and Family Welfare, Ministry of Law and Justice, and Ministry of Women and Child Development. The bench noted that this case would not be tagged with other pending petitions, as those involved married women as petitioners. "We would have to segregate this. Because in all other cases, there are married women (as petitioners). You are coming for transgender persons and single women. We would have to segregate this and not tag," Justice Nagarathna explained.

Dr. Shaikh's petition contends that the exclusion of single unmarried women and transgender persons from surrogacy procedures violates Articles 14, 15(1), and 21 of the Indian Constitution. The plea emphasizes that such exclusion amounts to discrimination based on gender identity and sexual orientation. "The Rules and Amendment Notification state that only married couples or women who are divorced or widowed can avail of surrogacy procedures, thus excluding single unmarried women and transgender persons from availing surrogacy," the petition highlights. As a result, single women, women in live-in relationships, women in same-sex relationships, and queer women are barred from accessing surrogacy.

Dr. Shaikh asserts that this exclusion denies single women and transgender persons the right to start a family through surrogacy, thereby violating their rights to reproductive autonomy and family life. "By such exclusion, the statute discriminates on the basis of marital status and gender identity and violates women’s right to reproductive autonomy," the petition argues. It also stresses that such exclusions perpetuate negative stereotypes against single unmarried women, suggesting they are incapable of parenthood, a stance previously deemed unconstitutional by the Supreme Court.

The petition underscores the increasing trend of transgender individuals opting for surrogacy to build a family. "Transgender persons who have stored eggs or sperm before their gender affirmation procedures may have eggs, sperm, or embryos available for use in a surrogacy process," the plea notes. However, the current definition of "intending woman" under Section 2(s) of the Act does not include transgender persons, thus excluding them from surrogacy procedures.

The Supreme Court has directed the Central government and relevant ministries to respond by July 10. The case will be heard next on July 11. Justice Nagarathna and Justice Dutta's bench emphasized the importance of addressing these exclusions, noting, "The statute discriminates on the basis of marital status and gender identity." The Court’s examination of the constitutional validity of these exclusions highlights its commitment to ensuring equality and non-discrimination under the law. The outcome of this case could significantly impact the rights of single women and transgender persons in India, particularly regarding their ability to access surrogacy as a means of starting a family.

Author: Anushka Taraniya

News writer