Why discriminate? Delhi High Court on provisions barring single unmarried women from availing surrogacy

The Delhi High Court on Monday asked the Central government why the marital status of a woman was a factor in availing surrogacy..A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula posed the question while dealing with a plea filed by a single unmarried woman challenging changes introduced in Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.The definition of ‘intending woman’ under Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 as well as Section 2(1)(zg) of the same Act has also been challenged before the Court..The petitioner highlighted that a notification dated March 14, 2023, has changed From 2 under Rule 7 of Surrogacy Rules and this has mandated that a single woman undergoing surrogacy must use her own eggs.With regard to the definition of ‘intending woman’, the Court was told this excludes single women who are unmarried and only permits an Indian woman who is a widow or divorcee to take the benefit of surrogacy.Both these aspects have been challenged by the petitioner. The petitioner, a 44-year-old woman, also argued that Section 2(1)(zg) of the Surrogacy (Regulation) Act is fully irrational and capricious because it says that a surrogate mother must be genetically related to the 'intending woman.'.When the matter came up before the Court, the judges questioned the Central government on the rationale behind barring unmarried women from availing surrogacy.“Why is marital status a criterion… Why this discrimination?” the Court asked the Central government’s counsel.The government counsel said that she would file a reply in the matter. .The petitioner-woman before the Court submitted that she never got married and was residing with her father. The counsel appearing for the petitioner stated that her family was not willing to opt for adoption and that they wanted to go for surrogacy. However, the provisions of the Surrogacy Act and Rules do not allow her to avail the same, it was stated. .The Court was also told that the petitioner has reached a stage where if her egg is used for surrogacy, it may lead to abnormalities in the child.The Court asked the petitioner’s counsel to get a certified medical opinion on the same and adjourned the case for a week.