On Monday, the Delhi High Court inquired as to why a woman's marital status was considered a determining factor for accessing surrogacy, questioning the central government's stance on the matter.

The question was raised by a division bench comprising Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula during their consideration of a legal petition filed by a single unmarried woman. The petition challenges the modifications made to Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022. Furthermore, the definition of 'intending woman' as defined in Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021, and Section 2(1)(zg) of the same Act, has also been contested before the Court.

The petitioner emphasized that a notification dated March 14, 2023, introduced changes to Form 2 under Rule 7 of the Surrogacy Rules. This alteration mandates that a single woman pursuing surrogacy must use her own eggs. Regarding the definition of 'intending woman,' it was brought to the Court's attention that this definition excludes single women who are unmarried. It only permits an Indian woman who is a widow or divorcee to avail the benefits of surrogacy.

The petitioner has challenged both of these aspects in the case, contesting the changes to Form 2 under Rule 7 of the Surrogacy Rules and the limitations imposed by the definition of 'intending woman' in the Surrogacy (Regulation) Act, 2021.

The petitioner, a 44-year-old woman, further contended that Section 2(1)(zg) of the Surrogacy (Regulation) Act is entirely irrational and arbitrary. This section stipulates that a surrogate mother must have a genetic relationship with the 'intending woman.'

During the court proceedings, the judges inquired with the Central government about the reasoning behind restricting unmarried women from accessing surrogacy services. They specifically asked, "Why is marital status a criterion... Why this discrimination?" In response, the government counsel stated that she would submit a reply to address these questions and concerns raised by the court.

The woman who filed the petition in court clarified that she had never been married and was currently living with her father. The petitioner's counsel further explained that the petitioner's family was not inclined to pursue adoption as an alternative, and instead, they were interested in exploring the option of surrogacy.

It was mentioned that the provisions outlined in the Surrogacy Act and Rules currently do not permit her to avail surrogacy services, despite her desire to do so.

The court was informed that the petitioner has reached a stage where using her eggs for surrogacy may potentially result in abnormalities in the child. In response, the court directed the petitioner's counsel to obtain a certified medical opinion on this matter. The case was adjourned for a week to allow for further consideration of this medical aspect.