The Supreme Court is set to consider the issue of whether a divorced man should be allowed to have a child through surrogacy. The writ petition filed by a 45 year old divorced single man has challenged the constitutional validity of S.2(1)(s) of the Surrogacy (Regulation) Act, 2021. The bench of Justice BV Nagarathna and Justice KV Vishwanathan agreed to consider the matter and issue notice…

The Supreme Court is set to consider the issue of whether a divorced man should be allowed to have a child through surrogacy. The writ petition filed by a 45 year old divorced single man has challenged the constitutional validity of S.2(1)(s) of the Surrogacy (Regulation) Act, 2021. The bench of Justice BV Nagarathna and Justice KV Vishwanathan agreed to consider the matter and issue notice in the same.

Notably, the same bench is also scheduled to consider a batch of petitions challenging the Surrogacy (Regulation) Act, 2021 and Surrogacy (Regulation) Rules, 2022 on the specific issue of upper-age limit. It is the case of the petitioner that S. 2(1)(s) the Act only allows widowed and divorced women within the age of 35-45 years to avail surrogacy and arbitrarily excludes divorced men who want to exercise their right to reproductive autonomy. The plea stresses that "Such blatant exclusion of single men constitutes a discriminatory classification lacking any rational nexus to the object sought to be achieved by the legislation.

It is a case of manifest arbitrariness, violating the Petitioner's fundamental rights under Articles 14, 19, and 21 of the Constitution of India." Terming such a gendered exclusion as 'regressive', the petition reasons that such provision is not based on any scientific or logical reasoning and only deepens the patriarchal mindset on '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on any scientific, logical, or child welfare considerations— rather, it is a regressive, exclusionary policy rooted in outdated patriarchal norms.

It has been observed by Robert Brown that “All love begins and ends with motherhood by which a woman plays the god, glorious it is as the gift of the nature, being both sacrosanct and sacrificial, though now again, science has forced us to alter our perspective of motherhood”. The State has no compelling interest in restricting surrogacy based on gender or marital status, making such exclusion unjustifiable, oppressive, and unconstitutional." The plea contends that denying divorced men the right to avail surrogacy strikes at the heart of Article 14, 15 and 21.

On Violation of Article 14 : "Parenthood, however, is not a privilege conferred upon a particular gender but a fundamental right rooted in the principles of equality, dignity, and autonomy. The impugned provision, by allowing surrogacy for divorced women while denying the same right to divorced men, fails the twin test of classification under Article 14 and stands manifestly arbitrary as expounded in Shayara Bano v. Union of India" On Violation Of Article 15(1) : "The preferential treatment granted exclusively to married Indian couples under the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, constitutes an unjustifiable form of discrimination that directly violates Article 15(1) of the Constitution of India." "By restricting access to surrogacy and ART procedures solely to married heterosexual couples, the law implicitly reinforces archaic gender roles, denying individuals—especially single men, unmarried women, and divorced individuals—their fundamental reproductive rights.

This legal exclusion is not based on any compelling state interest or rational nexus to child welfare but is instead rooted in outdated and patriarchal presumptions about who qualifies as a 'legitimate' parent." On Violation of Article 21 : The petition relies on the decision in K.S. Puttaswamy v. Union of India, which "unequivocally recognized that reproductive choices form an intrinsic facet of privacy and that every individual possesses the autonomy to make decisions regarding parenthood without unwarranted State interference."

It also refers to Suchita Srivastava v. Chandigarh Administration which held that reproductive autonomy is a fundamental right under Article 21. This right extends to both men and women, allowing them to make decisions concerning procreation, family life, and parenthood. Thus, exclusion of single and divorced men from surrogacy violates their bodily autonomy and restricts their choice to exercise reproductive freedom.

"The exclusion of single and divorced men from surrogacy directly impinges upon their fundamental right to make reproductive choices and imposes an unreasonable restriction on their bodily integrity and dignity. Parenthood is a deeply personal decision, and the State cannot arbitrarily deny access to reproductive technologies based on gendered stereotypes or marital status-based discrimination." Contradictory Laws On Parenting: The plea notes that while The Juvenile Justice (Care and Protection of Children) Act, 2015, and Section 7 of the Hindu Adoption and Maintenance Act, 1956, explicitly allow single men to adopt children, here the law recognises that "parenthood is not contingent upon marital status."

However, the denial of surrogacy rights to men contradicts this recognition by the above laws. The plea also relies on the decision in Githa Hariharan v. Reserve Bank of India which held that both men and women are equally competent to raise children. Liberal Reading Of Beneficial Legislation : The petitioner argues that a "beneficial legislation, the Surrogacy (Regulation) Act, 2021, must be interpreted in a manner that furthers constitutional values of equality, liberty, and individual autonomy.

Parenthood is not a privilege granted by the State based on gendered notions but an intrinsic right that must be safeguarded through a progressive constitutional interpretation." Against The Principle Of Transformative Constitutionalism : The petition refers to the landmark decision in Navtej Singh Johar v. Union of India where the Court held that "Constitution must transform societal norms to uphold individual dignity and equality." It also adds that in Joseph Shine v. Union of India, "The Court decriminalized adultery, rejecting outdated notions of gender roles and marital norms."

The plea emphasises that the impugned provision is against the principle of transformative constitutionalism, which upholds the need for the constitution to evolve with the changing needs of society and transform it into a progressive one. "These rulings indicate that any legislative provision restricting individual freedoms based on gender must be critically examined and, if necessary, struck down or reinterpreted in light of transformative constitutionalism." "Transformative constitutionalism supports the view that laws regulating surrogacy should enable individuals to realize their reproductive rights within the evolving context of modern family structures."

"The denial of surrogacy to single divorced men is based on outdated notions of gender roles, assuming that only women, and not men, can be primary caregivers of children. This assumption is not only patriarchal but also legally untenable under a progressive constitutional framework." Moreover, the petition also relies on various International Conventions which recognise reproductive rights including Article 16 of the Universal Declaration of Human Rights (UDHR) and Article 23 of the International Covenant on Civil and Political Rights (ICCPR) that recognize the right to found a family without discrimination.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) also emphasizes reproductive rights but does not advocate for the denial of such rights to men. The following reliefs have been sought by the petitioner : a) Issue an appropriate writ in the nature of mandamus or any other appropriate writ, order or direction Declare the exclusion of single/divorced men from surrogacy under the Surrogacy (Regulation) Act, 2021, as unconstitutional for being violative of Articles 14 and 21 of the Constitution of India; b) Issue an appropriate writ, order, or direction to strike down or read down the provisions of Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 to include divorced men for access to surrogacy. c) Award the Cost of the Petition.

d) Pass such further orders as may be deemed just, fit, and proper in the interest of justice. The matter will now be heard in July. Case Details : DR. MAHESHWARA M.V VERSUS UNION OF INDIA