Man challenges exclusion from surrogacy

A 45-year-old divorced dental surgeon from Karnataka has approached the Supreme Court challenging provisions of the Surrogacy (Regulation) Act, 2021 that exclude single men from accessing surrogacy services, a first-of-its-kind petition that contended parenthood was not a privilege conferred upon a particular gender.

A bench comprising Justice BV Nagarathna and Justice KV Viswanathan issued notice on the petition and sought response from the Union ministry of health and family welfare. The next hearing date was unscheduled.

The petitioner, represented by advocate Mohini Priya, contended that the current law permits divorced women aged 35-45 to access surrogacy while denying the same right to divorced men, creating what he terms an “arbitrary classification” with no rational basis.

The petition argued that if the state recognises reproductive autonomy for single divorced women, the same right must be extended to single divorced men.

“Parenthood is not a privilege conferred upon a particular gender but a fundamental right rooted in the principles of equality, dignity, and autonomy,” the petition states, arguing that the provision violates Articles 14 (equality), 19 (fundamental freedoms), and 21 (life and liberty) of the Constitution.

The dental surgeon’s petition challenges section 2(1)(s) of the Act, which expressly allows only married couples and single unmarried or divorced women to commission surrogacy. He asserted that these restrictions stem from “outdated gender stereotypes” that fail to recognise modern family structures.

While the Surrogacy Act and the Assisted Reproductive Technology (Regulation) Act, 2021 face existing challenges from IVF specialists, single women, LGBTQ community members, and divorced women regarding gender and age specifications, this marks the first such petition by a divorced man.

The petition cites the 2011 Census data showing over 1.36 million divorced or separated men in India—a figure likely higher today—and argues that remarriage presents significant challenges for men due to “societal stigma, age, and financial burdens post-divorce.”

Section 4(iii)(c) of the Act sets upper age limits for commissioning surrogacy at 55 years for men and 50 years for women, while Section 2(1)(s) grants special consideration to widowed and divorced women aged 35-45. The petitioner argues that the absence of an analogous provision for divorced men constitutes discrimination.

The petition also references the fundamental right to privacy recognised by the Supreme Court in 2017, arguing that denying single men access to surrogacy “impinges upon their fundamental right to make reproductive choices.”

Additionally, the petitioner links surrogacy rights to paternal responsibilities, including the right to paternity leave under Article 42 of the Constitution, which mandates just working conditions.

The petition concludes by noting that several nations including the US, Canada, Israel, and Russia recognise single men’s reproductive rights through surrogacy, suggesting India should follow suit in affirming that “family formation is a matter of individual choice, not restricted by gender or marital status.”