Bombay HC says allowing divorced woman’s surrogacy plea may have ‘repercussions’ like ‘commercialisation’, refuses interim relief

However, after it was pointed out that the larger issue of whether a single woman can avail surrogacy was pending before the Supreme Court, the HC said it was unable to grant interim relief and adjourned the proceedings till sine die and suggested the petitioner approach the SC.

A division bench of Justices Girish S Kulkarni and Advait M Sethna was hearing a plea for surrogacy by the woman whose two children are in custody of their father.

Advocate Tejesh Dande, representing the woman, submitted that in 2012, she had undergone ‘hysterectomy’, and her uterus was removed. In 2017, she got divorced by mutual consent, however both children are in the custody of their father and she has not had access to them since 2017 and “does not have any mother-child relation” with them.

Dande said the petitioner is staying alone after divorce and being a working woman, she is capable of maintaining herself. He added that even though her uterus has been removed due to medical complications, she is capable of using her own eggs for surrogacy.

Dande further said that as she desired for ‘motherhood’, she consulted her doctor for having a child through assisted reproductive techniques (ART), however, due to removal of uterus, the doctor suggested her surrogacy.

In 2023, after examining her, the director of a private hospital wrote to the civil surgeon of the district hospital with a request to issue a certificate of medical indication to the petitioner to allow her to undergo the consequential procedures required for surrogacy.

Earlier this month, as per HC directions, the medical board of the district hospital examined her and the civil surgeon held that the petitioner was “not ineligible” for surrogacy.

The district hospital referred to Section 4(iii)(a) of the Surrogacy (Regulation) Act 2021, which stipulated that any intending couple or intending woman is eligible to avail surrogacy only if they have no surviving child — biological, adopted, or born through surrogacy.

As per the law, an exception is made in case the existing child is suffering from a life-threatening disease, physically or mentally challenged.

The district hospital said in the present case the petitioner had two living and healthy biological children from previous marriage and “custody status or remarriage does not negate her ineligibility under the Act”.

When the matter came up for hearing during the pre-lunch session, the bench questioned what happens if in future an unmarried couple seeks to go for surrogacy but later they separate and if the same was the intention of the legislation.

“Whether such parenting is permissible? Who will be the father of the child?… This may lead to commercialisation of surrogacy. You want surrogacy as you are not capable of bearing a child… There are rights of the child once born too and we cannot just think about the woman’s rights… It is a larger issue. The case may be genuine but look at the repercussions. You have to consider all this,” the bench orally remarked.

After it was informed that the SC was seized of the “larger issue”, the HC said it was “unable to grant interim relief”. It suggested the petitioner approach the SC. It granted liberty to the woman to apply to the HC again after the SC decision.