Indian judge denies single woman right to surrogacy saying institution of marriage under threat

A Supreme Court judge hearing the plea of a single woman seeking surrogacy said the institution of marriage needs to be protected in India, unlike in the West “where children are often born outside of wedlock”.

Justice BV Nagarathna was hearing a plea of a woman, 44, who approached the court to seek permission to become a mother through surrogacy. Unwed women are not allowed to become mothers through surrogacy under Indian laws.

Presiding over the petition, justices Nagarathna and Augustine George Masih expressed their reservation in granting a favourable verdict.

Justice Nagarathna said: “It is a norm here to become a mother within the institution of marriage. Being a mother outside the institution of marriage is not the norm.”

She said the court was concerned about the welfare of a child born through surrogacy.

“Should the institution of marriage survive or not in the country? We are not like western countries. The institution of marriage has to be protected,” she added.

“You can call us and tag us conservative, and we accept it”.

The woman who works for an MNC challenged the validity of a part of the Surrogacy (Regulation) Act that only allows a widow or a divorcee to become a mother through surrogacy.

The judges suggested that the woman consider either adoption or marriage, comparing societal acceptance of children born out of wedlock born in India with those abroad. She stated that India cannot be like “the West, where many children do not know about their mothers and fathers”.

“We do not want children roaming here without knowing about their fathers and mothers,” the bench of judges said. "Science has well advanced but not the social norms, and that is for some good reason," the court said.

The judges added that “you cannot have everything in life”.

Over recent years, the issue of safeguarding the traditional definition of a marriage has become a subject of debate in Indian courts.

After days of deliberations last year, the Supreme Court rejected a landmark petition seeking the recognition of same-sex marriage in the country, arguing that marriage is exclusively an institution between a man and a woman.

The court’s order expressing reservations about allowing surrogacy births to unmarried women has sparked a backlash from many on social media who argue that it is not within the Supreme Court’s purview to protect the institution of marriage and infringes upon rights of women.

Anuradha, a lawyer, called it “ridiculous” on X, formerly Twitter.

“Absolutely ridiculous judgement! It is a woman’s choice to opt for motherhood outside of marriage by whatever way. Will the same apply for men opting for fatherhood outside of marriages! Why the high moral ground in this day age of science & technology.”

Sushant Singh, a senior fellow at the Centre for Policy Research in India, said: “It is not about conservative or progressive. Preserving the institution of marriage is none of your business, at least constitutionally.”

Another user GS Madhusudan said the court should stick to the constitution and that its job is not to save the institution of marriage.

The lawyer of the woman said the surrogacy law was discriminatory for not allowing unmarried women to have a child through surrogacy and the “restrictions not only infringe on the fundamental rights of the petitioner but are also violative of basic human rights of an individual to found a family as recognised by the UN and reproductive rights”.