Surrogacy Law for Unmarried Women

The Bombay High Court recently told a 38-year-old divorced woman to go to the Supreme Court to decide if a single woman can have a child through surrogacy. The court ruled that her application was invalid under Section 4 of the Act, which prohibits surrogacy for those with surviving children. It noted that giving temporary permission in this case could have bigger effects and might lead to turning surrogacy into a business.

What is Surrogacy?

Surrogacy is an arrangement where a woman, known as a surrogate, carries a child for another person or couple. The surrogate may be genetically related to the child or not, depending on the type of surrogacy. The primary intent is to provide a child to those unable to conceive.

Types of Surrogacy

There are two main types of surrogacy – altruistic and commercial. Altruistic surrogacy involves no financial gain beyond medical expenses. It permits only medical expenses and insurance coverage for the surrogate. Commercial surrogacy involves compensation exceeding these expenses and is prohibited under the 2021 Act. This law aims to prevent exploitation and ensure ethical practices. The Surrogacy (Regulation) Act, 2021 distinguishes between altruistic and commercial surrogacy.

Key Legal Definitions under the Surrogacy (Regulation) Act, 2021

• Surrogacy (Section 2(zd)): When a woman carries and delivers a child for an intending couple.
• Intending Couple (Section 2(r)): A man and woman with a medical need who want a child through surrogacy.
• Intending Woman (Section 2(s)): A divorced or widowed Indian woman aged 35-45 who wants a child via surrogacy.

Eligibility Criteria

The Surrogacy (Regulation) Act, 2021, specifies eligibility for intended parents. A legally married couple must have a medical condition requiring surrogacy. The woman must be between 25 and 50 years old, and the man between 26 and 55. Importantly, they must not have any living children, whether biological, adopted, or through surrogacy.

Concerns About Commercialisation

The High Court expressed concerns regarding the potential commercialisation of surrogacy. Judges questioned the implications of allowing unmarried individuals to pursue surrogacy. Such cases could lead to complex legal and ethical dilemmas regarding parental rights and child welfare.

Month: Current Affairs - April, 2025

Category: GS-II-Constitution of India & Polity, GS-II-Social Justice, GS-II-Governance