Surrogacy Law: Exclusion Of Single Women, Trans Persons Violates Fundamental Rights? SC Seeks Centre's Response

Supreme Court asked the Centre to reply to a PIL challenging the exclusion of single unmarried women and transgender persons from the application of Surrogacy (Regulation) Act, 2021.

The current law as it stands is against women’s right to reproductive autonomy, the plea contends.

Source : PTI Images

In a recent development the Supreme Court asked the Centre to reply to a PIL challenging the exclusion of single unmarried women and transgender persons from the application of Surrogacy (Regulation) Act, 2021.

A bench comprising Justice BV Nagarathna and Justice Dipankar Dutta issued notices to the Ministry of Health and Family Welfare, Ministry of Law and Justice and Ministry of Woman and Child Development on Monday.

The top court noted that seperate petitions were alleready pending challenging the Surrogacy law, but by married woman. This petition was filed for transgender persons and single woman. 

The petition has been filed by a 41-year-old transwoman and activist Dr. Aqsa Shaikh. 

The plea contends that exclusion of single unmarried women and transpersons from surrogacy procedures is violative of Fundamental Rights guaranteed Articles 14, 15(1) and 21 of the Constitution.

The plea submitted in the top court that exclusion of queer and transgender persons from getting surrogacy amounts to discrimination on the ground of gender identity and sexual orientation.

According to the current law, only married couples or women who are divorced or widowed can undergo of surrogacy procedures.

The petitioner has challenged this law for depriving unmarried women and transgender persons from availing surrogacy. The petition further argues that exclusion of single women and transgender persons deprives them of the right to start a family life through surrogacy.

The plea further states that Transgender persons who preserved eggs or sperm before their gender affirmation procedures, may have eggs, sperm or embryos in storage available for them to use for surrogacy. It further contends that Transgenders may be able to provide eggs or sperm to create embryos to conceive a child through surrogacy.

The current law as it stands is against women’s right to reproductive autonomy, the plea contends.

"Excluding unmarried single women from within the remit of “intending woman” is a sex-based classification under Article 15(1) as it is based on women’s marital status or single status," the plea states.

It is further argued that such an exclusion perpetuates negative stereotypes against single unmarried women in society as "incapable of parenthood."