Inclusive Futures: Surrogacy, Single Women And Constitutional Dynamics

Introduction

The concept of “surrogacy” outlines the process where a woman carries and delivers a child on behalf of another couple, thereafter giving back the child to the intended parents after birth. Within the context of family dynamics and reproductive rights, the debate over the legalisation of surrogacy for single women in countries like India lie at the intersection of legal statutes and societal beliefs. Further, in light of the entrenched patriarchal mindset and the legislation of the Surrogacy (Regulation) Act, 2021 (Hereinafter “Act”), clear exclusions are apparent considering certain groups in their capacity to utilise the rights stipulated by the Act. Single women in India face more daunting exclusionary barriers to surrogacy due to the narrow definition of “intending woman” in Section 2(1)(s) of the Act, which primarily recognizes married women. This restrictive criterion excludes single women from accessing surrogacy services, thereby denying them the same reproductive choices and opportunities available to married women. Moreover, the Act allows only “married couples” and “widowed” and “divorced” women between the ages of 35 to 45 to access the benefits of surrogacy. The predicament faced by single and unmarried women warrants attention, mindful of the constitutionally enshrined fundamental Right to Equality (Article 14) and Right to Life (Article 21).

The discussion pertaining to infringement of a single women’s right to surrogacy has assumed paramount importance because of the latest Supreme Court (Hereinafter “SC”) judgment in the case of Arun Muthuvel v. UOI, wherein the court held that a single woman does not have the right to avail surrogacy benefits. It is essential to bear in mind that this candidly regressive judgment came at the backdrop of a societal transition towards inclusivity of a multitude of family structures and personal identities. Further, by penning down a decision of such nature, the SC appears to contravene several fundamental rights available to women ranging from Right to Motherhood, to Right to form a family.

Through this paper, the author seeks to champion the cause of single and unmarried women who seek to avail the procedure of surrogacy while being able to exercise reproductive rights over their body. However, due to the enactment of the above-mentioned provisions, they find themselves unable to exercise this inherent right. The author further contends the infringement of various fundamental rights faced by such women. Moreover, the scope of the paper is limited to challenging the constitutionality of the provision which confines the construction of the word “intending women” appearing in the impugned provision to mean only widow or divorcee. Thus, the declaration of the provision as unconstitutional will not affect the operation of the entire statute considering the interplay of doctrine of severability.

In Part I of the paper, the author introduces the idea that he seeks to put forward along with certain contentions that would be further elaborated upon in the paper. In Part II, the author seeks to discuss the case and the arguments presented by the court while rebutting the same. Further, Part III and Part IV will deal with how Article 14 and Article 21 of the Indian Constitution have been blatantly violated considering the discussed judgment and the due provision as stipulated in the Act. Finally, in Part V, the author seeks to conclude the paper while offering certain recommendations in this regard.

Surrogacy Predicament: Examining Judicial Argumentation and Realities

Before embarking upon the analysis of the verdict, it is imperative to understand the facts of the case. In the present case, a petition was filed by a “44-year-old unmarried women” who wished to have a genetically related offspring via surrogacy. The major contention presented by her in the petition revolved around challenging the provision of Section 2(1)(s) of the Act and how the same was discriminatory in nature. This case was heard by a two-judge bench in which the judges while dismissing the plea gave several reasons ranging from saving the institution of marriage to child’s welfare being the major concern for denying right to surrogate to single women. Likewise, a detailed breakdown of the court’s reasoning has been enunciated in this part while highlighting the deficiencies present in each aspect of its argumentation.

First, the court remarked that the “child must be genetically related to the intending women.” In simple words, the child that will be born must be from mother’s biological cells. Here, if we think of scenario where there is a single woman who has some inherent medical condition because of which, if she uses her gametes for reproduction purpose, then the child who will be born using such gamete would have to suffer from certain medical condition say, Down Syndrome. Then, in such case, no woman would be willing to use her gamete as it would lead to both emotional and negative consequences, both for her child and herself. Here, even if a close relative of a single woman agrees to be a “surrogate mother,” she cannot use the process of surrogacy because of the conditions stipulated in the present law. It is here the court failed to understand the shortcoming of the Act and thus, could not cure the defect, whereby single woman has been left hanging high and dry.

Second, the court stated that it is a prevailing norm in India to become a mother within the institution of marriage. They went on questioning whether the institution of marriage should survive in the country or not? The bench even expressed concern over this while asserting that they were speaking from the perspective of a child’s welfare. This reasoning of prevailing norm and child’s welfare is inherently unsound. The assumption that marriage is a prerequisite for a child’s well-being ignores the diverse family structures that exist and thrive globally. This reasoning perpetuates outdated stereotypes that undermine the rights of single women to make autonomous reproductive choices. Furthermore, if conformity to norms governed every part of our social structure, the long-standing national custom of living in joint family arrangements would have endured, making the concept of nuclear families obsolete from the start. Not every time people would want to tread the path of any established custom, especially when the same infringes their inherent right to bodily autonomy. Judicial arguments must align with current social realities rather than rigidly adhere to outdated customs. Courts should recognize that societal norms evolve and that legal frameworks must adapt to protect individual rights and reflect the diverse ways people choose to live their lives today. Moreover, upholding the institution of marriage should not come at the price of an individual’s personal freedom and reproductive choices. And, questioning the survival of institution of marriage merely on the basis that a single woman wants to rear a child reflects a narrow judicial mindset while overlooking diverse family structures. Thus, denying unmarried women access to surrogacy ignores the reality of non-traditional families, which can be just as loving, secure, and caring as their married counterparts. Now, moving ahead with the reasoning vis-à-vis child welfare. The presumption that a child’s interest is best served by a married couple perpetuates unjust stereotypes. Further, providing a nurturing environment for a child depends on individual circumstances rather than marital status alone. Say, if a couple engages in constant conflicts while raising a child, the resulting negative impact on the child is likely to outweigh the positive ones.

The court by giving such reasons missed an opportunity to address pressing social realities and promote inclusivity in surrogacy laws. Moreover, a major aspect that was overlooked by the court while giving the decision was that the provision and their reasoning in the current judgement, infringed the rights expounded under Article 21. The aspect will be discussed at length in Part IV of the paper.

Article 14 And Unjust Exclusion of Single Women

The language used in the Act and the exclusion of specific groups from accessing benefits stated therein, along with subsequent reasoning by the SC in the Arun Muthuvel case, have led to infringement upon right to equality as guaranteed by Article 14. Any provision’s constitutionality on the touchstone of Article 14 can be effectively examined if it fulfils the reasonable classification test (Hereinafter “test”) and the arbitrary doctrine (Hereinafter “doctrine”) as propounded by the SC. Additionally, the test comprises of two main aspects, namely, intelligible differentia and rational nexus.

Reasonable Classification Test

This test states that a law is deemed to be constitutionally valid if the differentiation created by different individuals is based on intelligible differentia, and there is a rational nexus, that is present, between the classification and the object sought to be achieved by the law.

Intelligible Differentia

The concept of Intelligible differentia are the attributes that defend or justify the unequal treatment of people or groups under a law. The provision of the Act which defines “intending women” restricts the definition of such women who are either widow or divorcee and are between the ages of 35 to 45 years. Here, the differentiation amongst women seems to be solely based on marital status and their age. It excludes other categories of women such as single and unmarried who might have a legitimate interest in using the surrogacy procedure. The differentiation only on the basis of marital status, runs afoul of the equal treatment as guaranteed by Article 14. The regulation does not clarify and justify how being a widow or a divorcee contributes to the broader goal of promoting the child’s welfare and regulating surrogacy services in India, making it an unreasonable basis for differentiation. Moreover, the government failed to provide any coherent rationale for why single women are permitted to adopt but have been deliberately excluded from the scope of surrogacy. The provision’s reliance on intelligible differentia lacks a sound justification, as it arbitrarily discriminates based on marital status and age without promoting child welfare. This exclusion undermines the principle of equal treatment enshrined in Article 14, necessitating a re-evaluation of the law to ensure it aligns with constitutional guarantees and contemporary social realities.

Rational Nexus

The concept of “rational nexus” refers to the requirement that there must be a logical and reasonable connection between the classification established by the law and the objective which the government sought to achieve by means of such a law. The objective that was kept in mind while drafting this provision pertains to successful child rearing that is in relation to ensuring proper care and support along with promoting stable family structures. But, on the other hand, research suggests that older women are generally more understanding and patient than younger mothers when it comes to motherhood. Therefore, the aspect of restriction of age does not help in fulfilling state’s objective.

Further, there has been “under inclusiveness,” in the present case. It occurs when “a state imposes a burden or advantage on individuals in a way that advances a legitimate purpose, but does not impose the same burden or benefit on others in like circumstances.” The provision in our case is an apt example of how there has been under inclusion considering the absence of mentioning single women in the provision, even though they have the capability to achieve the intended objective of ensuring a child’s proper welfare.

Further, individual circumstances of every person form a vital aspect while considering their ability to rear a child as has already been stated in Part II of the paper. The question that is often asked when the aspect of rational nexus is referred to, relates to whether “the measure is necessary to achieve the objective.” Indeed, it can be argued that while the measure may be deemed necessary to achieve its objective, its restrictive nature poses significant limitations. The necessity of the measure can be rationalized due to the absence of alternative legislation that could effectively serve the intended purpose. However, the restrictiveness of the measure can be contested as it lacks provisions for individualized examination and directly excludes a specific group, thereby exacerbating the stigma already associated with these women.

Arbitrary Doctrine

Following long usage of the test, the court for the first time in EP Royappa v. State of T.N., put forward the doctrine of arbitrariness. Bhagwati J, while speaking for the bench, articulated how arbitrariness is one of the facets of equality. He observes that “equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; where one belongs to the rule of law in a republic and the other, to the whim and caprice of an absolute monarch.” Further, in the case of R.D. Shetty v. UOI, the SC expounded that “arbitrariness is the very negation of rule of law. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is a necessary consequence of the rule of law.” Moreover, any action taken by the state including legislative enactments would be considered arbitrary if it lacked rational basis and is not reasonable.

In analysing the arbitrary nature of the provision, it becomes apparent that the requirement for an “intending woman” to be a widow or divorcee serves no legitimate purpose concerning the welfare of the child or the effectiveness of the surrogacy process. The criterion does not inherently enhance the quality of care or support provided to the child, nor does it mitigate any potential risks associated with surrogacy. To make matters worse, limiting surrogacy eligibility to women in the designated age range highlights how capricious the clause is. While age restrictions may be justified in some situations to protect against health concerns or ensure parental capability, the provision is inherently discriminatory when arbitrarily imposed without considering the unique circumstances or medical considerations.

Essentially, the clause fails to demonstrate a connection between the intended objectives of the law and the specified criteria. The arbitrary nature of the criteria becomes apparent when considering its inordinate impact on single and unmarried women, who are practically kept out of the ambit from availing themselves of surrogacy services exclusively based on their marital status. The contested clause’s definition of “intending woman” contains an element of arbitrariness as it falls short of the constitutional mandate of equality and non-discrimination. It constitutes an unjustifiable restriction on the reproductive rights of single women and unmarried women, perpetuating arbitrary distinctions without a rational basis.

Article 21- AND SINGLE-WOMAN’S Reproductive Autonomy

Article 21 of the Constitution, frequently regarded as the cornerstone of fundamental rights, enshrines the right to life and personal liberty. Within its broad ambit lies the recognition of personal autonomy and dignity, which are decisive components that encloses the right to make decisions about one’s own body and reproductive choices. As a reproductive technique, surrogacy is clearly covered by the privacy rights associated with reproductive autonomy, and surrogacy falls under the privacy rights linked to reproductive autonomy, protected by Article 21 of the Indian Constitution. The restrictive definition of “intending woman” in the Act infringes on this right by arbitrarily excluding single and unmarried women, thereby violating their fundamental right to make personal reproductive choices. This exclusion lacks a coherent rationale, highlighting the need for an inclusive legal framework that respects reproductive autonomy and equality. It gives people the ability to make private decisions about starting a family and becoming parents, which are essential components of personal privacy. As a result, surrogacy is firmly established as a component of reproductive rights and is consistent with the values of autonomy and privacy. Further, individual choices regarding conception and offspring have been recognised as components of reproductive autonomy.

First, the right to reproductive autonomy is considered to be matter of privacy and hence, falls under the right to privacy aspect. Even though factually different from the present scenario, in a notable case involving abortion of a rape victim, a two-judge bench of the SC held that “the right of every woman to make reproductive choices without excessive intrusion from the state is crucial to the purpose of human dignity.” It is worth noting that the bench that presided over the above-mentioned case included Justice BV Nagarathna, a judge who was also present in the Arun Muthuvel case. But, in the Arun Muthuvel case, she went on to state how a single woman cannot have everything in life and how social norms are to respected. This demonstrates a discernible inconsistency in her point of view vis-à-vis individual rights and societal expectations. Moreover, X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Ors, was another case which directly upheld this facet of woman’s fundamental right and explicitly supports the notion that a woman can choose to become pregnant regardless of her marital status.

Second, the SC has held that right to form a family of one’s own choice is a facet of fundamental right as the same is directly related to an individual’s integrity over his bodily autonomy and his mental and emotional wellbeing. Moreover, it should be borne in mind that Article 8(1) of the European Convention of Human Rights, states that every individual has the right to be respected with reference to his or her private and family life. And, Article 51(c) of the Constitution, in addition with judicial precedents, stipulates that the government is constitutionally bound to respect international law and honour treaty obligations. While there are established jurisprudence and international norms in favour of forming a family, the SC in the present case remarked that the petitioner “preferred to remain single and she cannot everything in life.” Therefore, the provision’s wording and the court’s reasoning, overlooks the nuanced perceptions that one’s marital status should not hinder her reproductive autonomy and the fact that a woman remained single till a particular age, does not justify denying her the right to exercise her fundamental right.

Third, in India becoming a mother is considered sacrosanct and is widely believed by people that motherhood is the source of existence for women. Likewise, on similar lines, it has been held that the right to life guaranteed by Article 21 includes “right to mother and become a mother.” The Himanchal High Court has held that the “most natural thing that can happen to a woman is become a mother.” Further, the SC in Hema Vijay Menon, held that “right to procreate and be a mother is a personal decision and should not have government intrusion in a democratic society.” Despite such rulings, the SC in the present case seems to brazenly ignore the established judicial precedents and deny single women their wish to become a mother while giving unreasonable reasons such as that even though science has well advanced, we need to respect the social norms. To rebut this argument, it should be kept in mind that the SC in the case of Francis Coralie held that the principles concerning the construction and interpretation highlights the need to interpret constitutional provisions widely to ensure their continued relevance and vitality over time, especially when it comes to fundamental rights such as the right to life. Similarly, the assertion that social standards have not kept up with scientific advancements ignores how society values have changed over time and how important it is to preserve individual liberty. Denying people this privilege (of becoming a mother) because of antiquated societal norms erodes their independence and upholds unfair discrimination.

In essence, the provision’s wording of “intending women” and court’s reasoning directly infringes upon single and unmarried woman’s right to exercise their reproductive autonomy and being able to form a meaningful family while being able to embrace their motherhood under Article 21 of the Constitution.

Conclusion

In conclusion, the discussion encompassing surrogacy, single women and the Constitution highlights the complex interrelationship of social norms, legal structure, and personal rights involved around this aspect. The latest decision by the SC in Arun Muthuvel v. UOI has brought to the front the obstacles encountered by single women in availing surrogacy benefits, which ultimately raises pertinent issues about reproductive autonomy, dynamic family structures and equality. A thorough comprehension of individual autonomy and reproductive rights is required, as demonstrated by the analysis of the judicial reasoning and legislative clauses. In addition to ignoring the varied realities of contemporary families, the insistence on adhering to conventional norms and limiting surrogacy access based on marital status violates fundamental rights guaranteed by the Constitution.

Moving forward, there is a pressing need to amend policies and laws to ensure that procreative rights are comprehensive which helps in reflecting diverse forms of family structures.

One of the methods by which surrogacy for single women can be regulated is formation of “Reproductive Cooperatives.” To meet reproductive needs and support varied family formations, reproductive cooperatives bring together individuals, healthcare providers, and community organisations in a cooperative effort. One such example of cooperative is “Babylon” in the Netherlands, which serve as community hubs for offering assistance and resources to people and single women undertaking assisted reproductive procedures, such as surrogacy. In the Indian context, similar provisions could be incorporated to support single women in accessing surrogacy. Establishing community hubs or cooperatives could bridge the gap between legal restrictions and the need for reproductive autonomy. Such hubs could provide essential services and create a supportive community, ensuring that single women can safely and confidently pursue surrogacy. This solution-oriented approach could harmonize with India’s constitutional guarantees, promoting equality and individual liberty in reproductive health. These facilities could help people in negotiating the intricacies of surrogacy and other family-building alternatives by providing social support networks, medical treatments, and counselling.

To put it simply, the path to inclusive futures necessitates a determined effort to knock down obstacles, question societal norms, and defend the core values of equality and human dignity. We can work towards a more equitable and inclusive society where each person’s decisions and experiences are appreciated and respected by advocating for the rights of single and unmarried women to use surrogacy and exercise their reproductive autonomy.

(This post has been authored by Tanishq Kabra, a second year student at West Bengal National University of Juridical Sciences, Kolkata.)

CITE AS: Tanishq Kabra, ‘Inclusive Futures: Surrogacy, Single Women And Constitutional Dynamics’ (The Contemporary Law Forum, 15 July 2024) <tclf.in/2024/07/15/Inclusive Futures: Surrogacy, Single Women And Constitutional Dynamics/>date of access.