Divorced woman seeking surrogacy referred to SC

Time of India

21-04-2025

Mumbai: Bombay high court on Monday directed that a 36-year-old divorced mother, who is medically unable to bear a child anymore, may approach Supreme Court where a similar issue of single women seeking permission for surrogacy is pending. The high court said the issue raised by the woman, of enabling her as a single woman to opt for surrogacy, raised larger issues when the law specifically made no mention of such a provision. Allowing her plea to go in for surrogacy, just as an 'intending couple' may, could lead to unwanted repercussions which the law intended to prevent—commercialisation of the process, the high court remarked orally.
The woman's counsel, Tejesh Dande, arguing before a division bench of Justices Girish Kulkarni and Advait Sethna, said since her uterus was removed, she can no longer bear a baby, and her two children from a previous marriage are in their father's custody. Dande said she may be permitted to take the surrogacy route to motherhood again, since she didn't intend to marry again.
The high court, hearing the matter in the morning, said the interest of a child, once born through surrogacy, also has to be considered, not only that of the woman. "There are a child's rights too. You cannot think only of your rights as a woman,'' Justice Kulkarni orally remarked during the hearing.
Dande said her plea was rejected as she didn't fall under the 'intending woman' category under the Surrogacy Act. The Act allows a widow or divorcee to opt for surrogacy if she does not have any surviving child or if such a child has a life-threatening condition. Hers was a special condition, hence he sought the high court's intervention.
In the morning session, the high court asked Dande and the Centre's lawyer, Y R Mishra, to inform what similar cases are pending before Supreme Court on the issue, in the post-lunch session. Dande cited two cases pending on the single woman issue before Supreme Court, and the high court adjourned the matter sine die and said she could intervene in the matter before Supreme Court. Supreme Court has petitions seeking clarification on definition of "intending woman" to know if a single unmarried woman is covered.
The bench said, "We can't read 'intending couple' who are allowed surrogacy under certain conditions, to mean 'intending woman'. Reading something into the section is impermissible unless you can show what the legislation intended."
Dande said her plea was rejected since she didn't meet the "intending woman" definition under Surrogacy Act. A woman is ineligible for surrogacy if she has a living child from a previous marriage, the Act says.