'Not like western countries, need to save institution of marriage', says SC

'A single woman bearing a child outside marriage was the exception rather than the rule in Indian society,' said the Supreme Court

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.