Why Bombay High Court referred surrogacy plea by divorced woman to Supreme Court

Indian Express

24-04-2025

The Bombay High Court on Monday (April 21) asked a 38-year-old divorced woman to approach the Supreme Court to address whether a single woman was entitled to have a child through surrogacy.
The HC passed this ruling after noting that this larger issue was pending before the Supreme Court, and observed that granting interim relief to her may have wider 'repercussions' and the same may lead to 'commercialisation' of the procedure.
What was the case?
The petition was filed in 2023 by the then-36-year-old, a divorcee with two biological children in the custody of their father (her ex-husband). The woman contended that she suffered disability to bear the child as she had undergone a 'hysterectomy' in 2012 and her uterus was removed. She got divorced by mutual consent in 2017, with the custody of the children awarded to her ex-husband. She said she has not had access to them since 2017 and 'does not have any mother-child relation' with them.
Desiring 'motherhood', the petitioner first consulted her doctor for having a child through assisted reproductive techniques (ART), and was suggested surrogacy.
The petitioner said she is capable of using her own eggs for surrogacy, and as a single working woman, she was capable of maintaining herself and had also not remarried.
During the pendency of the petition, the concerned Civil Surgeon, District Hospital, on April 11 rejected her application seeking granting certificate of 'medical indication' to undergo consequential procedures required surrogacy.
The petitioner said her request was denied as she did not fall under the 'intending woman' category under the Surrogacy Act.
On what grounds did the Civil Surgeon reject the application for a certificate for surrogacy?
The Civil Surgeon of the District Hospital rejected the plea, citing Section 4(iii)(a) of the Surrogacy (Regulation) Act, 2021. The provision stipulated that an 'intending couple' or 'intending woman' is eligible to avail of surrogacy only if they do not have a surviving child – biological, adopted or born through surrogacy. Section 4 relates to 'regulation of surrogacy and surrogacy procedures.'
The Hospital said that as per law, an exception is made only in case the existing child suffers from a life-threatening disease with no permanent cure, or is certified by the medical board or appropriate authority as physically or mentally challenged. It noted that the petitioner has two living and healthy biological children from the dissolved marriage, and that their 'custody status' or her not getting remarried would not create an exception for her to become eligible for surrogacy.
The Civil Surgeon further emphasised that the eligibility condition takes into account the presence of the surviving child and not the fertility status. The aggrieved petitioner thus sought the High Court's intervention.
What do 'surrogacy,' intending couple' and 'intending women' mean under the law?
The High Court noted that as per definition in section 2(zd) of the 2021 Act, 'surrogacy' means 'a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.'
Moreover, the 'intending couple,' as per section 2(r) of the Act, means 'a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.'
Section 2(s) of the law provided that an 'intending woman' means an Indian woman who is a widow or divorcee between the ages of 35 and 45 years and who intends to avail surrogacy.
What did the Bombay HC observe?
A bench of Justices Girish S Kulkarni and Advait M Sethna prima facie opined that section 4 of the 2021 Act was required to be examined based on the meanings attributed to the three terms.
The Court said that the 'larger issue' was whether 'surrogacy' as defined in the law would take in its ambit 'intending women' as contended by the petitioner, while the said term only refers to 'intending couple.'
Justice Kulkarni orally apprehended 'commercialisation of surrogacy,' and questioned what happens if in future an unmarried couple seeks to go for surrogacy but later separates and if the legislation intended the same.
The judge asked whether such parenting would be permissible and who would be the father of the child. The bench said the present case may be 'genuine', but granting interim relief would have 'repercussions'.
There was an 'implicit' issue of rights of the surrogate child in case of a single woman, and the consideration could not be restricted only to the rights of the woman.
The High Court referred to an order passed by the Supreme Court bench of Justices B V Nagarathna and Ujjal Bhuyan on December 5, 2023. It noted SC is seized of the proceedings on larger issues involved in regard to the rights of unmarried and/or single women to avail childbearing by surrogacy.
The HC adjourned the plea sine die (indefinitely) and asked the petitioner to either approach the SC in the pending proceedings if she wished to seek an opinion or 'appropriate view' of the SC on the 'larger issues,' or wait till the adjudication of the proceedings before the SC.
The HC allowed the petitioner to apply again after the SC decision.