A single woman in her forties once sought my legal opinion on a surrogacy arrangement she was planning to undergo in a foreign country because current laws do not permit single women in India to have children through surrogacy. While I gave her my opinion and she went ahead with her surrogacy arrangement abroad, another woman has taken a different route. This woman has approached the Supreme Court seeking the right to have a child through surrogacy as a single woman. The Surrogacy (Regulation) Act 2021, permits only married couples or only a woman who is a widow or divorcee between the age of 35 to 45 years to have children through surrogacy. It does not allow a single, never-married woman to use surrogacy for having children. The petitioner has challenged this provision of the law as being discriminatory on the grounds of her single status.
The Supreme Court, while issuing notice to the government, remarked that there were other ways in which the woman could have a child — she could get married or adopt. It also remarked that she could not have everything in life as she had chosen to remain single and that the institution of marriage was important in society as children need to know their fathers. The petition throws up a whole range of important issues and questions the inherent biases that our society has in accepting single women, especially when it comes to access to reproductive choices.
The Surrogacy (Regulation) Act, 2021 does not prohibit divorced or widowed women from having children through surrogacy. Women who choose to be single or are never married, however, are seen as a stigma, with negative stereotypes, of wanting to “have it all” and hence not allowed to have biological children. Sex-based legal inequality is still very present for single women in India. There is a widespread bias against them, which is steeped in negative stereotypes. Compared to married or coupled people, who are often described in positive terms, single, never-married women are assumed to be immature, maladjusted, and self-centred.
This discrimination includes systemic, structural, and institutional ways in which single women are unfairly disadvantaged and married people are advantaged. This systemic discrimination is built into laws, regulations and policies. Legislation on reproductive rights and choices is especially discriminatory towards single women. The Surrogacy Regulation Act, for example, benefits people who are or were legally married by permitting them to use surrogacy, and hence turn single persons, more notably single women, into second-class citizens and a disadvantaged class. The Medical Termination of Pregnancy Act, even after it was amended in 2021, did not contain any reference to single women, and only states in Rule 3 (B) (c ) that abortions would be permitted within 24 weeks on grounds of a change in the marital status of the women to divorcee or widowhood. It is completely silent on the single status of a woman and due to this, single women have been facing great barriers in getting access to safe abortions.
The Supreme Court had to interpret this to include the right of single women to terminate their pregnancies as doctors were refusing to do so unless they obtained consent from husbands or family members. Despite the positive interpretation from the Supreme Court, single women seeking termination of pregnancies are still facing hurdles.
Motherhood, especially through new reproductive technologies, has been particularly restrictive for single and lesbian women. Inequalities in reproductive rights including the right to access surrogacy, fertility treatment and other reproductive choices reveal the stigma that single women face, and this often stems from traditional ideas about the family and welfare of children. One of these concerns is the need for children to have fathers. The Royal College of Obstetricians and Gynaecologists argued before the House of Commons Science and Technology Committee in 2004-05 in the UK that the requirement for a father as per traditional notions of the welfare of the child discriminated against single women “who may have the financial and emotional facilities to cope with a child on their own or with other support systems”. These notions also discriminate against queer couples and the “need for a father”, which should be replaced with the “need for supported parenting” that can ensure a commitment to the health, well-being and development of this child. Such a change in assessment of the welfare of the child would also be in keeping with the Supreme Court’s recognition of legal rights for non-traditional or atypical families in the Deepika Singh judgment in 2022.
In 2001, 51.2 million single women were living in India. By the 2011 Census, this number had risen by 39 per cent to cross 71 million and in the next census, this number could even cross 100 million. Till recently, this large group was a silent, excluded and even absent group in accessing surrogacy and reproductive treatments, but they are not silent anymore. The law needs to take the lead in ensuring equality and enhancing the reproductive rights of single women in contemporary India today.
The writer is senior advocate, Supreme Court
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