A single lady in her forties as soon as sought my authorized opinion on a surrogacy association she was planning to bear out of the country as a result of present legal guidelines don’t allow single girls in India to have kids via surrogacy. Whereas I gave her my opinion and he or she went forward together with her surrogacy association overseas, one other lady has taken a special route. This lady has approached the Supreme Courtroom looking for the appropriate to have a toddler via surrogacy as a single lady. The Surrogacy (Regulation) Act 2021, permits solely married {couples} or solely a lady who’s a widow or divorcee between the age of 35 to 45 years to have kids via surrogacy. It doesn’t permit a single, never-married lady to make use of surrogacy for having kids. The petitioner has challenged this provision of the legislation as being discriminatory on the grounds of her single standing.
The Supreme Courtroom, whereas issuing discover to the federal government, remarked that there have been different methods through which the lady might have a toddler — she might get married or undertake. It additionally remarked that she couldn’t have all the things in life as she had chosen to stay single and that the establishment of marriage was essential in society as kids must know their fathers. The petition throws up a complete vary of essential points and questions the inherent biases that our society has in accepting single girls, particularly in terms of entry to reproductive decisions.
The Surrogacy (Regulation) Act, 2021 doesn’t prohibit divorced or widowed girls from having kids via surrogacy. Ladies who select to be single or are by no means married, nonetheless, are seen as a stigma, with unfavorable stereotypes, of desirous to “have all of it” and therefore not allowed to have organic kids. Intercourse-based authorized inequality continues to be very current for single girls in India. There’s a widespread bias towards them, which is steeped in unfavorable stereotypes. In comparison with married or coupled individuals, who are sometimes described in constructive phrases, single, never-married girls are assumed to be immature, maladjusted, and self-centred.
This discrimination consists of systemic, structural, and institutional methods through which single girls are unfairly deprived and married persons are advantaged. This systemic discrimination is constructed into legal guidelines, rules and insurance policies. Laws on reproductive rights and decisions is very discriminatory in the direction of single girls. The Surrogacy Regulation Act, for instance, advantages people who find themselves or have been legally married by allowing them to use surrogacy, and therefore flip single individuals, extra notably single girls, into second-class residents and a deprived class. The Medical Termination of Being pregnant Act, even after it was amended in 2021, didn’t comprise any reference to single girls, and solely states in Rule 3 (B) (c ) that abortions can be permitted inside 24 weeks on grounds of a change within the marital standing of the ladies to divorcee or widowhood. It’s utterly silent on the only standing of a lady and on account of this, single girls have been dealing with nice limitations in having access to secure abortions.
The Supreme Courtroom needed to interpret this to incorporate the appropriate of single girls to terminate their pregnancies as medical doctors have been refusing to take action until they obtained consent from husbands or relations. Regardless of the constructive interpretation from the Supreme Courtroom, single girls looking for termination of pregnancies are nonetheless dealing with hurdles.
Motherhood, particularly via new reproductive applied sciences, has been significantly restrictive for single and lesbian girls. Inequalities in reproductive rights together with the appropriate to entry surrogacy, fertility remedy and different reproductive decisions reveal the stigma that single girls face, and this typically stems from conventional concepts in regards to the household and welfare of kids. One in every of these considerations is the necessity for kids to have fathers. The Royal School of Obstetricians and Gynaecologists argued earlier than the Home of Commons Science and Know-how Committee in 2004-05 within the UK that the requirement for a father as per conventional notions of the welfare of the kid discriminated towards single girls “who might have the monetary and emotional amenities to deal with a toddler on their very own or with different help methods”. These notions additionally discriminate towards queer {couples} and the “want for a father”, which must be changed with the “want for supported parenting” that may guarantee a dedication to the well being, well-being and growth of this little one. Such a change in evaluation of the welfare of the kid would even be in step with the Supreme Courtroom’s recognition of authorized rights for non-traditional or atypical households within the Deepika Singh judgment in 2022.
In 2001, 51.2 million single girls have been dwelling in India. By the 2011 Census, this quantity had risen by 39 per cent to cross 71 million and within the subsequent census, this quantity might even cross 100 million. Until not too long ago, this huge group was a silent, excluded and even absent group in accessing surrogacy and reproductive remedies, however they aren’t silent anymore. The legislation must take the lead in making certain equality and enhancing the reproductive rights of single girls in modern India right this moment.
The author is senior advocate, Supreme Courtroom