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‘Institution of marriage must be preserved’: SC rejects unmarried woman’s plea for surrogacy

India cannot go on the lines of western countries where children being born outside of marriage is not uncommon, the Supreme Court said on Monday, February 5, while hearing the petition of a 44-year-old unmarried woman who was seeking permission to become a mother through surrogacy.

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The institution of marriage should be protected and preserved in the country, the court said. A bench of Justices B V Nagarathana and Augustine George Masih said a single woman bearing a child outside marriage was not the rule in Indian society but an exception.

“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,” Justice Nagarathna stated.

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In the beginning of the hearing, the bench suggested to the woman that there were other ways to become a mother: by getting married or adopting a child. However, her lawyer responded that she did not wish to get married and that the waiting period for adoption was protracted.

The petitioner, through her lawyer, challenged the validity of Section 2(s) of the Surrogacy (Regulation) Act, which interprets “intending woman” as a widow or a divorcee between the ages of 35 and 45, and wished to avail herself of the surrogacy option. Apparently, this implies that a single unmarried woman is not allowed to become a mother through surrogacy, the Times of India reported.

Stating that the custom of marriage in this country should not be defenestrated, the bench observed, “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 prefers 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 advanced but not the social norms, and that is for some good reason,” the court said.

Meanwhile, the petitioner’s lawyer challenged the provisions and said that they were rather unfair because a single woman could get married just to avail herself of this right, and after some time she could get a divorce. However, the court said it wasn’t so easy, claiming that it would hear the woman’s petition along with a batch of other petitions that challenge 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 form a family as recognized by the UN and reproductive rights… recognized as an aspect of personal liberty under Article 21,” the petition said.

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