An Argument for the Inclusive Right to Parenthood by Surrogacy in India Commentary
Pexels / Pixabay
An Argument for the Inclusive Right to Parenthood by Surrogacy in India
Edited by: JURIST Staff

The path toward gender equality is rife with hurdles at every turn, and despite significant progress over the years, setbacks often accompany our victories.

The Surrogacy (Regulation) Act of 2021 (hereinafter referred to as the ‘SRA’) permits married couples and divorced or widowed women aged 35 to 45 years to utilize surrogacy for having children. However, it notably excludes single and unmarried women, as well as homosexual couples, defining ‘intending couple’ strictly as a union between a CIS-gender man and woman. Additionally, the law disregards unmarried couples cohabitating who seek to conceive through surrogacy.

Recently, a 44-year-old single woman petitioned the Indian Supreme Court seeking permission to undergo surrogacy for having children. However, the Hon’ble Court dismissed her plea, adopting a paternalistic stance. The Court expressed concern for preserving the institution of marriage, viewing the acceptance of her plea as potentially detrimental to this sacred bond.

This arbitrary exclusion denies single and unmarried women, cohabitating unmarried couples, and homosexual couples the right to form their own families solely because their relationships aren’t sanctioned by current legal norms. Such denial not only lacks justice but also signals legislative endorsement of patriarchal and homophobic ideologies.

We argue against these regressive notions on parenthood, asserting the rights of single mothers and non-heterosexual couples to pursue surrogacy based on principles of constitutional morality. This argument is grounded in constitutional tenets such as personal liberty, right to privacy, and bodily autonomy. Additionally, we advocate for embracing transformative constitutionalism to align laws with evolving societal values.

In essence, it’s imperative to challenge discriminatory laws and advocate for inclusivity in matters of family-building, recognizing the diverse forms of relationships and individuals’ rights to parenthood regardless of marital status or sexual orientation.

Surrogacy & Patriarchal Conceptions of Family

Both the court’s ruling in the aforementioned case and the legislature’s drafting of the SRA fail to grasp the essence of parenthood: the paramount concern should not be marital status, but rather the capacity to provide a child with a nurturing environment, love, and support. The court’s decision perpetuates the patriarchal notion that every child necessitates a ‘father figure’.

This raises the fundamental question: why has marriage become a prerequisite for parenthood? The institution of marriage originated to legitimize sexual relationships and the offspring thereof. However, this antiquated rationale no longer holds in modern times, where laws can confer legitimacy to children irrespective of marital status.

The insistence on marriage as a prerequisite for family formation is also evident in Article 16 of the UDHR, which states: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” A literal interpretation of this provision suggests that marriage precedes family.

While it’s true that procreation is one of the purposes of marriage, the law should also accommodate individuals seeking alternative paths to parenthood. The insistence on a heterosexual married couple as the ideal environment for raising a child is entrenched in arbitrary classifications and stereotypes, contravening various aspects of the constitution.

Reasonable Classification, Intelligible Differentia, and a Rational Nexus

Article 14 of the Indian Constitution guarantees every citizen the right to equality. Consequently, any legislative measure must adhere to the principles of reasonable classification and demonstrate a rational nexus with the objectives it seeks to achieve. The Surrogacy (Regulation) Act (SRA) ostensibly aims to regulate the practice and process of surrogacy, but in practice, it excessively confines the use of Assisted Reproductive Technologies (ARTs) within the framework of hetero-normative marriages.

This legislation employs unreasonable classification at multiple levels. Firstly, it discriminates between divorced or widowed women and unmarried single women regarding eligibility for surrogacy. Secondly, it unjustly excludes unmarried couples compared to their married counterparts, thereby also disregarding non-heterosexual couples seeking parenthood through surrogacy. Thirdly, it creates an arbitrary division between single women pursuing family-building through adoption versus surrogacy, lacking a rational basis.

Regarding the first differentiation, it’s crucial to recognize that both divorced or widowed women and single unmarried women may lack a traditional father figure for the child. Assuming that the former might receive support from their in-laws fails to establish a reasonable rationale for this distinction.

The second classification is similarly unfounded as there’s no evidence suggesting that unmarried couples are incapable of providing a nurturing environment for a child. While the Supreme Court has asserted that heterosexual unions are not morally superior to homosexual unions, it suggested that the former are better equipped to provide stability due to legal recognition. However, this reasoning is flawed as it unfairly penalizes queer unions for lacking societal benefits and recognition, which is a failure of the state, not the unions themselves.

In the third classification, it’s noteworthy that both secular and non-secular laws in India permit adoption by single unmarried women. Therefore, denying motherhood via surrogacy to such women under the SRA fails the test of Article 14, as there’s no substantial difference between two women embracing motherhood through different means; the ultimate goal remains the same. This provision merely perpetuates societal disapproval toward women who choose motherhood without marriage.

In conclusion, the SRA’s discriminatory classifications not only violate the right to equality but also perpetuate outdated societal norms, hindering individuals’ reproductive autonomy and perpetuating systemic injustices.

Privacy & Bodily Autonomy

The restrictions imposed on those eligible for surrogacy services encroach upon the right to privacy, as established in the Puttaswamy case by the Supreme Court of India. The Court emphasized that fundamental aspects such as “the sanctity of marriage, the liberty of procreation, the choice of family life, and the dignity of being” are integral to privacy and apply universally, regardless of an individual’s social status.

The Puttaswamy judgment further elucidates on the autonomy of individuals to make decisions for themselves. According to Justice Chandrachud, “decisional autonomy” encompasses intimate personal choices, including those governing reproduction, as well as choices expressed publicly, such as faith or modes of dress. This “decisional privacy” also extends to intimate decisions concerning one’s sexual or procreative nature and decisions regarding intimate relations.

Drawing from various international legal frameworks and cases, the court asserted that the right to privacy must encompass and protect personal intimacies such as those related to the home, family, marriage, motherhood, procreation, and child-rearing. The court emphasized the Constitution’s acceptance of the plurality and diversity of culture, stating that “intimacies of marriage, including the choices individuals make regarding marriage and partners, lie outside the control of the state.”

Therefore, it is imperative to recognize and uphold the rights of single-unmarried individuals, unmarried unions (both heterosexual and homosexual), as the decision to have a child is theirs to make. Parenthood entails far-reaching implications beyond just ensuring the presence of a father and mother, impacting various aspects of a parent’s life, including finances, social life, economic well-being, and health. Therefore, as rational agents, each person must be afforded the right to choose to have children via surrogacy, free from undue interference.

Public Morality vs. Constitutional Morality

Furthermore, this provision contradicts the ethos of Article 21 of the Constitution, which guarantees the right to personal liberty. Every individual should have autonomy regarding their choices in becoming a parent. The right under Article 21 can only be curtailed on certain grounds, including morality. It’s crucial to understand, as Chief Justice Dr. Chandrachud pointed out in Navtej, that the term ‘morality’ implies constitutional morality rather than public morality.

In several instances, public morality has diverged from constitutional morality, and in such cases, the latter takes precedence over the former. As the Supreme Court aptly articulated:

Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21.

Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.

Hence, personal beliefs about marriage, motherhood, and similar matters cannot dictate legislative and judicial actions. As previously discussed, discrimination against individuals based on their choice of relationships fails to uphold constitutional principles. Therefore, the authors advocate for amending surrogacy laws to be more inclusive, aligning with the ethos of the constitution.

Transformative Constitutionalism as the Way Forward:

Transformative Constitution, as elucidated by Gautam Bhatia, serves as a mechanism to transcend stereotypes, patriarchy, and state paternalism, aiming for substantive equality. The contested provision of the SRA presupposes that modern-day technology should only be accessible to those adhering to traditional family norms, undermining autonomy and personal freedom crucial to individual existence. Autonomy and privacy, as underscored in the Puttaswamy case, are intrinsic to human dignity.

Furthermore, courts have acknowledged that families diverging from societal norms are equally deserving of legal protection and social welfare benefits. As highlighted in the Deepika Singh Judgment cited in the marriage equality case, “Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones.”

The courts have previously demonstrated how transformative constitutionalism can overcome discrimination. The Supreme Court should follow suit, and the legislature should ensure non-discrimination by revising the provisions of the SRA. The government can reconsider the legal framework and adopt proposed amendments, such as those suggested by the Vidhi Centre for Legal Policy, to encompass a diversity of family forms, including single individuals, same-sex partners, and stable unions, as qualifying for surrogacy services to form families.

Harshita Gupta and Alka Nanda Mahapatra are honors students at the National Law University in Jodhpur, India.



Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.