Why is marital status a criteria for woman to avail surrogacy under law: Delhi HC to Centre

The Centre’s counsel said that she would seek instructions on this point. The matter is next listed on October 31.

The court was hearing a plea by a 44-year-old single, unmarried woman challenging section 2(1)(s) of the Surrogacy Act, which excludes women like her from availing the procedure while only allowing an Indian widow or female divorcee to take the benefit of the same.

Under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, an “intending woman” means an Indian woman who is a “widow” or “divorcee” between the age of 35 and 45 years and who intends to avail the surrogacy.

The plea also challenges the regulation that forces a “single woman (widow or divorcee)” to use her own eggs to avail the surrogacy procedure.

The woman’s counsel argued that her client could not get married earlier in her life and now wants to have a child through surrogacy but because of her age, it is medically not advisable to use her own gametes for the procedure and thus, she wants donor female gametes for it.

The counsel said that in order for the child to be genetically connected, the woman’s brother has consented to donate his gamete; however for the female gamete, she seeks a donor.

The plea submits that embargo coming in the woman’s way are the provisions of the Act, adding that the reproduction of a female gamete has no connection with a woman’s marital status and the State cannot regulate the reproductive choices of its citizens.

The HC also asked the petitioner’s counsel to file a medical opinion of the doctor to state that the petitioner cannot give her own gametes.