The institution
of marriage must be protected and preserved in the country, and it cannot
follow the model of Western countries where children are born outside of
marriage, the Supreme Court (SC) said on Monday, expressing reservations about
allowing unmarried women to become mothers through surrogacy.
While hearing the
petition of a 44-year-old unmarried woman who approached the top court seeking
permission to become a mother through surrogacy, which is not permitted by law,
Justices B V Nagarathna and Augustine George Masih stated that a single woman
bearing a child outside marriage was the exception rather than the rule in
Indian society.
"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. We are concerned about it.
We are speaking from the point of view of (the) child's welfare. 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. You can call us and
tag us conservative, and we accept it," the court observed.
The petitioner,
who works for a multinational corporation, approached the court through her
lawyer, Shayamal Kumar, to challenge the validity of Section 2(s) of the
Surrogacy (Regulation) Act, which defines "intending woman" as an
Indian woman who is a widow or divorcee between the ages of 35 and 45 and
intends to avail the surrogacy option. This suggests that a single unmarried
woman is not eligible to become a mother through surrogacy.
At the outset of
the hearing, the bench informed the woman that there were alternative options
for becoming a mother, such as marrying or adopting a child. However, her
lawyer stated that she did not want to marry and that the waiting period for
adoption was quite long.
Remarking that
the institution of marriage could not be tossed out of the window, the bench
said, "It is difficult to rear and bring up a surrogate child at the
advanced age of 44. You cannot have everything in life. Your client preferred
to remain single. We are also concerned about society and the institution of
marriage. We are not 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."
"Science has
well advanced but not the social norms, and that is for some good reason,"
the court said.
The petitioner's
lawyer challenged the provision, arguing that it was discriminatory as a single
woman could marry only to be eligible under the Act and then divorce after some
time. However, the bench stated that it was not that simple. The court added
that it would hear her petition, as well as a number of other petitions
challenging other provisions of the Act.
"The
restrictions are wholly discriminatory and without any rational or reason. The
said restrictions not only infringe on the fundamental rights of the petitioner
but are also violative of the basic human rights of an individual to found a
family as recognised by the United Nations [UN] and reproductive rights...
recognised as an aspect of personal liberty under Article 21," the
petition said.