The Supreme Court of India will soon decide whether a divorced man can have a child through surrogacy. A 45-year-old divorced man has filed a writ petition, challenging the constitutional validity of Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021.
A bench led by Justice BV Nagarathna and Justice KV Vishwanathan has agreed to consider the matter and issued a notice. Interestingly, the same bench is also looking into petitions that challenge the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022, especially regarding the upper age limit.
The petitioner argues that Section 2(1)(s) only permits widowed and divorced women between the ages of 35 to 45 years to access surrogacy, unfairly excluding divorced men who wish to exercise their reproductive rights.
"Such blatant exclusion of single men constitutes a discriminatory classification lacking any rational nexus to the object sought to be achieved by the legislation," the petition highlights.
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The plea describes the exclusion as "regressive", stating that it is not supported by any scientific or logical reasoning but only strengthens patriarchal views about motherhood.
"The denial of surrogacy rights to the Petitioner is not based on any scientific, logical, or child welfare considerations—rather, it is a regressive, exclusionary policy rooted in outdated patriarchal norms," the petition argues.
The petitioner claims that this law violates fundamental rights under Articles 14, 15, and 21 of the Constitution:
Article 14 (Right to Equality): "Parenthood is a fundamental right rooted in equality, dignity, and autonomy. Denying surrogacy rights to divorced men, while granting them to divorced women, fails the classification test under Article 14."
Article 15(1) (Prohibition of Discrimination): "Restricting access to surrogacy only to married heterosexual couples constitutes discrimination, reinforcing outdated gender roles."
Article 21 (Right to Life and Personal Liberty): The plea relies on K.S. Puttaswamy v. Union of India, stating: "Reproductive choices are part of privacy, and every person has autonomy over parenthood without unnecessary State interference."
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It also cites Suchita Srivastava v. Chandigarh Administration, where reproductive autonomy was recognized as a fundamental right.
The petition points out that other laws like the Juvenile Justice Act, 2015, and Section 7 of the Hindu Adoption and Maintenance Act, 1956, allow single men to adopt children. This shows that parenthood is not limited by marital status.
Additionally, the case of Githa Hariharan v. Reserve Bank of India affirmed that both men and women are equally capable of raising children.
The petitioner argues that beneficial laws like the Surrogacy (Regulation) Act must be interpreted in a way that promotes equality and liberty.
"Parenthood is an intrinsic right, not a privilege granted by the State based on gendered ideas," the plea states.
Citing Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India, the petitioner stresses that laws must evolve with society to uphold dignity and equality.
"Denying surrogacy to single divorced men is based on outdated gender roles, wrongly assuming that only women can be primary caregivers," the petition highlights.
The plea also refers to international conventions like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which recognize reproductive rights without discrimination.
Reliefs Sought:
- Declare the exclusion of single/divorced men from surrogacy unconstitutional.
- Strike down or read down Section 2(1)(s) to include divorced men.
- Award the cost of the petition.
- Pass any other orders necessary for justice.
The case will now be heard in July.
Case Title: Dr. Maheshwara M.V versus Union of India
