IL Feature

The Quest for Motherhood

The Supreme Court’s admonition to a single woman for wanting to be a mother is debatable and begs the question if her marital status is more  important than her financial means or mental health

By Shaan Katari Libby

Surrogacy came into the spotlight on February 5 in Arun Muthuvel vs Union Of India when a woman in her forties was admonished by Supreme Court Justices BV Nagarthana and Augustine George Masih for trying to be a mother outside the institution of marriage.

The bench said: “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 a 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.”

This may seem harsh and a reminder of the Dark Ages when women cooked, cleaned and produced babies. The Court said in so many words that a woman cannot have everything. But why shouldn’t she have everything? A man can father children at any age, so why can’t a woman be a mother at any age? Why should a government or court decide this? 

Besides, there may be many reasons why a woman does not settle down. She may not have met the right person, she may have had a high pressure job, she may have had to look after ailing family members, she may have had a long term illness…. At the end of the day, we all know whether or not we are capable of being a parent. It is not a decision one takes lightly. And if a woman has the drive and wherewithal to approach a court on this issue, it is unlikely she would be doing so on a whim. 

A look at surrogacy in India and other jurisdictions shows some interesting facts. To begin with, as per the Hindu Adoption and Maintenance Act, 1956, in India, the following are entitled to adopt—an individual with the capacity and the right to adopt, from someone who has the capacity to give in adoption. Any male Hindu who is of sound mind and not a minor has the capacity to adopt a son without restrictions. A male can only take a daughter in adoption with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Unmarried men are ineligible to adopt female children—for obvious reasons. 

A child of any gender may be adopted by a single female. A female Hindu can adopt provided she is of sound mind and not a minor. An unmarried woman can adopt a child. A married woman can adopt, so also those whose marriage has been dissolved, been widowed or has a husband declared by a competent court to be of unsound mind.

Islam doesn’t recognise absolute adoption. Section 8 of the Guardians and Wards Act, 1890, enables them to take up the guardianship of a child. The Juvenile Justice (Care and Protection of Children) Act, 2000, also empowers Muslims to adopt. Mainstream law enables any individual in India to adopt a child, regardless of religion.

Christians and Parsis also don’t recognise full adoption. In the event that somebody needs to adopt, he can approach the courts and get legitimate consent under the Guardians and Wards Act, 1890. The Act licenses them to take a child under child care. The child, on achieving the age of 18, is allowed to split all associations and leave. He additionally has no lawful privileges of legacy, according to Christian laws. Still, under the Juvenile Justice Act which overrides individual laws, Christians and Parsis can adopt a child.

Like adoption, surrogacy, is a personal choice. It is not for anyone to dictate whether or not one can opt for this route. Take actress Priyanka Chopra who together with her spouse Nick Jonas had a surrogate child, Malti Marie. But that was in the US and even there, she spoke about the intrusion surrounding this.

In the UK, surrogacy laws were overhauled with the Law Commission putting forward various regulatory updates in March 2023: “The use of surrogacy—where a woman becomes pregnant and gives birth to a child to be brought up by another family—has increased in recent years, and is recognised by the Government as a legitimate form of building a family.” The Law Commission’s report and draft legislation outlines a new regulatory regime that offers more clarity, safeguards and support—for the child, surrogate and parents who will raise the child.

The new surrogacy law in India—The Surrogacy (Regulation) Act, 2021—established eligibility criteria for intended parents seeking to undertake surrogacy. The intended couple must be lawfully married and the female must be between 23 to 50 years, and the male, 26 to 55 years. Also, they must not have any biological offspring from a prior marital union and must bring forth a willing surrogate who should be wedded and possess at least one offspring of her own. Yet, as per law, a female of 18 years can be married, but the law for some reason adds five years before she can be a parent. Similarly, a man can marry at 21 years, yet he cannot be a surrogate parent for five years after this. In the UK, by comparison, there is no legal age limit or different range to being a surrogate parent.

In India, an unmarried woman may also qualify as an intended parent, provided she falls in the age group of 35 to 45 and is either married, divorced or widowed. Nonetheless, if she has a child from a previous marriage, she is ineligible for surrogacy. This was the point that the petitioner was challenging. 

Various countries have different laws on surrogacy. The US does not regulate surrogacy at a federal level, so each state has its own laws. There are 14 states where surrogacy in some form is permitted by the statute; the regulations vary considerably. California allows and regulates full surrogacy contracts only. The intended parents are also able to receive pre-birth parentage orders in which the court designates legal parentage status before the birth of the child, but it does not take legal effect until the actual birth. Moreover, California places no limitations on who can be a surrogate and there is no residency requirement. As a result of these friendly regulations, California has become one of the top surrogacy destinations in the world. Virginia law, in contrast, allows surrogacy, but has a number of restrictions such as a requirement that the surrogate receive no compensation for her services. Also, commercial surrogacy (where the surrogate mother can receive monetary compensation for her services) in the US has allowed single people, those who suffer from infertility or disabilities, and others who have traditionally been unable to produce children, such as members of the LGBTQ community, to do so. In India, this is banned, but the intended parents can compensate the surrogate for travel, clothes, medicine, tests, check-ups and so on. This makes sense, but there is concern over “benevolent surrogacy”, resulting in fertile women in the family being coerced into being the surrogates.

There are other countries with very traditional approaches to surrogacy. Japan, for instance, has no statutory provisions regulating surrogacy, and the Japanese Society of Obstetrics and Gynecology flatly bans the practice. As a result, many infertile couples have gone abroad to arrange surrogacy. But in 2007, the Supreme Court ruled that the legal mother in a surrogacy birth is the surrogate even if a foreign court had ruled otherwise. 

In Saudi Arabia, religious authorities do not allow the use of surrogate mothers. In China, despite a massive effort to encourage women to have more babies, the Ministry of Health banned surrogacy in 2001. Despite this regulation, it is reported that an illegal surrogacy “black market” flourishes in China. Anxious about such a situation, strict legislation has been suggested by political parties.

In Sweden, surrogacy is not clearly regulated. The legal procedure most equivalent to it is making adoption of the child from the surrogate mother. It is illegal for Swedish fertility clinics to make surrogate arrangements. On the other hand, in Ukraine, surrogacy is completely legal. Only married couples can legally go through gestational surrogacy. In Russia, commercial gestational surrogacy is legal and available for willing adults. There has to be a certain medical indication for surrogacy. Foreigners have the same rights for assisted reproduction as Russian citizens.

Surrogacy remains an area with many shades of grey. At its basic level, the surrogate is simply providing a womb for a baby she has no relation to. Other surrogates may be providing the oocytes, in which case the baby is genetically hers and the father’s. There are several legal and ethical questions surrounding consent, commercial arrangements and control that desperately require clarification. 

At the end of the day, though, the very last thing we should be concerned about is whether the woman has tried marriage or not. This seems a superficial ultra conservative concern to base one’s decision on. One can look at a person’s financial means, their mental health, their track record as an existing parent, but not their marital status or whether or not they are already a parent. 

Double standards on age need to be removed—there needs to be complete fairness and equality. As a lawyer who handles divorce cases, one can safely say that some women would have been better off not getting married at all as marriage has made them miserable. They have children too with their abusive partners—but at what cost? And for those women who remained single, why shouldn’t they have children? Why should she be punished for not attaching herself to a man? Do we need a man in our lives to make us complete? The answer is no. 

An equal partner in life is a wonderful thing, but hard to come by. If one does not find him, one should still be permitted to live life to the fullest. Courts should encourage and strengthen these women’s dreams of being responsible mothers. Courts are meant to defend fundamental rights, and that includes those of single women. 

—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research inputs from Ismath Hajarah