Source: Indian Express 

Introduction 

The Bombay High Court on 21st April 2025, directed a 38-year-old divorced woman to approach the Supreme Court regarding her right to have a child through surrogacy. The Court declined to grant interim relief, noting that the larger issue of single women's surrogacy rights was already pending before the Supreme Court. The Court expressed concerns about potential "commercialization" of surrogacy and wider repercussions if interim relief were granted. 

What was the Background of the Case? 

Background: 

• The petition was filed in 2023 by a then 36-year-old divorced woman seeking to exercise her reproductive rights through surrogacy. 
• She has two biological children who are in the custody of her ex-husband following divorce proceedings. 
• She underwent hysterectomy in 2012, resulting in the removal of her uterus and consequently losing her ability to bear children naturally. 
• She got divorced by mutual consent in 2017, with custody arrangements favoring the father. 
• She has not had access to her children since 2017 and stated she "does not have any mother-child relation" with them. 
• Desiring to experience motherhood again, she consulted medical professionals who suggested surrogacy as a viable option given her medical condition. 
• The petitioner confirmed she was capable of using her own eggs for the surrogacy process. 
• As a single working woman, she affirmed her financial independence and ability to care for a child. 
• Her application for a certificate of 'medical indication' for surrogacy was rejected by the Civil Surgeon, District Hospital on 11th April, 2025. 

Court Observations: 

• A bench comprising Justices Girish S Kulkarni and Advait M Sethna examined the petitioner's claims in detail. 
• The High Court conducted a prima facie examination of section 4 of the Surrogacy (Regulation) Act, 2021 Act in light of the statutory definitions relevant to surrogacy. 
• The Court identified a critical legal question:  
  • whether 'surrogacy' as defined in law would include 'intending women' as contended by the petitioner, when the statutory definition only refers to 'intending couple'. 
• Justice Kulkarni orally expressed apprehension about potential "commercialization of surrogacy" if relief were granted. 
• The Court posed hypothetical scenarios, questioning what would happen if unmarried couples sought surrogacy and later separated, raising concerns about parental rights and responsibilities. 
• The Court deliberated on who would be recognized as the father of the child in cases involving single women. 
• While acknowledging that the present case might be 'genuine,' the Court states that granting interim relief could have wider repercussions for surrogacy law interpretation. 
• The Court specifically considered the implicit rights of the surrogate child in case of a single woman seeking surrogacy. 
• The Court emphasized that legal considerations cannot be restricted only to the reproductive rights of the woman but must balance various competing interests. 

Which Legal Provisions were Central to the Case? 

• Section 4(iii)(a) of the Surrogacy (Regulation) Act, 2021:  
  • Stipulates that an "intending couple" or "intending woman" is eligible for surrogacy only if they do not have a surviving child. 
• Section 2(zd):  
  • Defines 'surrogacy' as "a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth." 
• Section 2(r): 
  •  Defines "intending couple" as "a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy." 
• Section 2(s):  
  • Defines 'intending woman' as "an Indian woman who is a widow or divorcee between the ages of 35 and 45 years and who intends to avail surrogacy." 

What Other Factors Influenced the Court's Decision? 

• The Civil Surgeon of the District Hospital formally rejected the petitioner's application for a surrogacy certificate on 11th April, 2025, specifically citing Section 4(iii)(a) of the Surrogacy (Regulation) Act, 2021. 
• In the rejection order, the Civil Surgeon explicitly stated that the petitioner has two living and healthy biological children from her dissolved marriage, making her ineligible under the law. 
• The Civil Surgeon clarified that the custody status of her existing children had no bearing on her eligibility for surrogacy under the current legal framework. 
• The medical authority observed that the statutory exception to the "no surviving child" rule applies only in specific circumstances: if the existing child suffers from a medically documented life-threatening disease with no permanent cure, or if the child is certified by an appropriate medical board as physically or mentally challenged. 
• The Civil Surgeon's order made an important legal distinction by emphasizing that eligibility considers the presence of surviving children, not the applicant's fertility status or ability to bear children. 
• The High Court made specific reference to ongoing Supreme Court proceedings dated 5th December, 2023, where a bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan is reviewing similar issues related to surrogacy rights. 
• The Bombay High Court determined that the Supreme Court was better positioned to address the "larger issues" involved in the rights of unmarried and/or single women to avail childbearing by surrogacy. 
• The High Court formally adjourned the plea sine die (indefinitely) and provided the petitioner with two options: either approach the Supreme Court to join the pending proceedings or wait for the Supreme Court's definitive ruling on the matter. 
• The Court left open the possibility for the petitioner to reapply after the Supreme Court renders its decision on the interpretation of the Surrogacy Act provisions. 

Conclusion 

The Bombay High Court has deferred to the Supreme Court on the question of whether a single woman with existing biological children can avail surrogacy. The case highlights the tensions between individual reproductive rights and the regulatory framework established by the Surrogacy Act. The final determination by the Supreme Court will have significant implications for single women seeking surrogacy in India.