Supreme Court: Need To Save The Institution Of Marriage, Cannot Follow The West

On Monday, the Supreme Court said that the institution of marriage has to be protected and cannot follow the path of the western countries where children born outside of marriage is common, during a petition hearing permitting unmarried women to become mothers through surrogacy.

Justices B V Nagarathna and Augustine George Masih stated that an unmarried woman bearing a child outside the bounds of marriage was the exception, during a petition hearing of a 44-year-old single woman seeking permission to become a mother via surrogacy.

Justice Nagarathna observed, “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 (the) child”s welfare. Should the institution of marriage survive or not in the country? The institution of marriage has to be protected. You can call us and tag us conservative, and we accept it.””

The petitioner challenged the validity of Section 2(s) of the Surrogacy (Regulation) Act which defines “”intending woman”” as an Indian woman who is a widow or divorcee between the age of 35 and 45 years, intending to adopt the surrogacy route. The law denies a single and unmarried woman from becoming a mother through surrogacy.

At the beginning of the hearing, the bench had suggested the petitioner other ways of becoming a mother such as to get married or adopt a child. However, her lawyer Shayamal Kumar responded that the petitioner did not wish to marry and that the waiting period of adoption was quite long.

The bench stated, “We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers.”

The petitioner challenged the provision stating the law as discriminatory against single women and violate the basic human rights of an individual as recognised by the UN and the reproductive rights under Article 21. The court said that it would hear her petition along with others which challenge other provisions of the Surrogacy Act.