Bombay High Court’s Stand on Single Woman Surrogacy
Legal Barriers in Surrogacy: Bombay High Court’s Ruling on Single Woman’s Petition: In a significant legal development, the Bombay High Court rejected the petition of a 38-year-old divorced woman seeking permission to become a mother through surrogacy. The court cited Section 4 of the Surrogacy (Regulation) Act, 2021, which prohibits individuals with surviving children from opting for surrogacy. The bench emphasized that allowing such exceptions could open the door to the commercialisation of surrogacy and undermine the spirit of the Act. The woman was directed to approach the Supreme Court for further clarification and constitutional interpretation.
Understanding Surrogacy and Legal Types
Surrogacy is a reproductive arrangement where a woman, known as a surrogate mother, carries a child for another person or couple. Based on financial aspects, the Act identifies two types: altruistic surrogacy and commercial surrogacy. Altruistic surrogacy allows only the reimbursement of medical and insurance costs, whereas commercial surrogacy, involving monetary compensation beyond medical expenses, is strictly prohibited. The Surrogacy (Regulation) Act, 2021, was enacted to curb exploitation and maintain ethical practices.
Who Can Opt for Surrogacy in India?
According to the Act, an intending couple must be a legally married man and woman facing certified medical infertility. The woman must be aged 25 to 50 and the man 26 to 55, with no living children—biological, adopted, or through prior surrogacy. The law also recognizes an intending woman under Section 2(s), defined as a widowed or divorced Indian woman aged 35–45 years, who does not have a child. However, even this eligibility comes with conditions under Section 4, restricting it to cases where there is no surviving child.
Concerns Around Commercial Exploitation
The court highlighted potential ethical issues if exceptions were made. Permitting divorced or single women with surviving children to undertake surrogacy could risk transforming surrogacy into a business model, which the 2021 law strictly forbids. It may also lead to ambiguity in parental rights, custody laws, and emotional responsibilities, prompting calls for a more robust and inclusive legal framework.
Broader Implications and Future Legal Directions
The current case reflects growing debates over reproductive rights versus regulatory control in India. The petitioner’s move to the Supreme Court could potentially lead to a broader constitutional interpretation of the law, particularly around personal liberty and reproductive autonomy. The outcome could redefine the scope of surrogacy access for single and divorced women in the future, prompting possible amendments to the 2021 Act.
STATIC GK SNAPSHOT
Legal Barriers in Surrogacy: Bombay High Court’s Ruling on Single Woman’s Petition:
| Topic | Details |
| Act in Focus | Surrogacy (Regulation) Act, 2021 |
| Purpose | Ban commercial surrogacy, regulate ethical practices |
| Types of Surrogacy | Altruistic (allowed), Commercial (banned) |
| Intending Woman | Divorced/Widowed Indian woman aged 35–45 |
| Section 4 | Bars surrogacy for persons with a surviving child |
| High Court Verdict | Application invalid under current law |
| Future Legal Path | Petitioner directed to Supreme Court |
| First Law on Surrogacy | India first proposed regulation in 2008; passed in 2021 |
| Legal Age for Surrogacy | Woman (25–50), Man (26–55) |
| Pioneering Case | First case under Section 4 involving a divorced woman |
