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SC asks govt to respond to divorced man’s plea against Surrogacy Act. How law regulates access in India

The man has argued that excluding single & divorced men from surrogacy under the law in unconstitutional. SC is also hearing other challenges to the Act.

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New Delhi: India’s surrogacy laws allow some to become parents—but exclude others based on notions of family. Now, the top court has been urged to decide if these exclusionary provisions are constitutional.

Earlier this week, the Supreme Court asked the Centre to respond to a petition filed by Bengaluru-resident Maheshwara M.V., who argues that excluding single and divorced men from surrogacy under the Surrogacy (Regulation) Act, 2021 is unconstitutional. The next hearing in scheduled for July.

The plea challenges the law for only permitting legally married couples and widowed or divorced women to opt for surrogacy. The petitioner, a 45-year-old divorced dental surgeon, argues that denying single and divorced men the right to pursue surrogacy is discriminatory as also unfair and unreasonable.

It violates his fundamental rights under Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty), he has argued.

His petition points out that the Surrogacy (Regulation) Act, 2021 specifically allows divorced women between the ages of 35 and 45 to opt for surrogacy under Section 2(1)(s), but offers no such provision for men in similar circumstances. This, his plea contends, reflects a biased approach based solely on gender and marital status, denying men equal opportunity to become biological parents.

A Supreme Court bench comprising Justices B.V. Nagarathna and K.V. Vishwanathan has agreed to examine the petition and issued a notice to the Centre. Notably, the same bench is already handling other challenges to the Surrogacy (Regulation) Act, 2021 and its corresponding Rules framed in 2022, with a particular focus on concerns about the upper age limit set for intending parents.

The top court examined the age bar issue in January 2025 and has asked the Centre to file a submission. The surrogacy regulations stipulate that “the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification”. The petitioners argued these rules are discriminatory as they deny certain individuals the right to become parents.

The government defends the current regulations, stating they are necessary to prevent the misuse of surrogacy and to protect women from potential exploitation. The court emphasised the importance of having protective measures in place to ensure surrogate mothers are not exploited, particularly given that commercial surrogacy is banned in India.

In a third case , the Bombay High Court last month reviewed a petition submitted by a divorced woman who wished to have a child through surrogacy. Although she has two children of her own, they are in the custody of their father. In her plea, she explained she is unable to conceive naturally as her uterus has been medically removed, and she does not plan to remarry.

However, her request for surrogacy was denied because, under the Surrogacy (Regulation) Act, she does not meet the legal definition of an “intending woman”—an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail surrogacy. The Act excludes women who already have children from accessing surrogacy, regardless of custody arrangements or medical conditions.

All these cases challenge parts of India’s surrogacy law that restrict access based on gender, marital status, and age. With ongoing legal and ethical debates around the 2021 2021, particularly regarding who is allowed to access surrogacy in India, ThePrint explains the scope and ambit of access to surrogacy in India.

The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 together marked a significant turning point, redirecting India’s approach to surrogacy toward ethical conduct and altruistic practices.


Also read: 2 years after passing laws on artificial reproduction, Centre asks states for data on surrogacy & IVF


Who has access to surrogacy?

The Surrogacy (Regulation) Act, 2021 has brought significant changes to who can legally opt for surrogacy in India, placing stringent eligibility criteria and banning several previously common practices.

Only legally married heterosexual couples who have been together for at least five years and are medically proven to be infertile can seek surrogacy. The woman in the couple must be between 23 and 50 years of age, and the man between 26 and 55. In addition to such couples, the law also allows widowed or divorced women between the ages of 35 and 45 to become parents through surrogacy.

This law excludes single individuals, same-sex couples, and partners in live-in relationships and women who already have children (regardless of whether the children live with them or not) from accessing surrogacy services, drawing criticism from those advocating for more inclusive family-building options.

The Surrogacy (Regulation) Act draws clear distinction between two forms of surrogacy: altruistic and commercial. Altruistic surrogacy, which involves no financial compensation beyond medical expenses and insurance for the surrogate, is permitted. In contrast, commercial surrogacy—which includes any additional payment or profit—is strictly banned. The intent is to promote ethical practices and prevent the exploitation of women surrogates.

Altruistic surrogacy is now the only form of surrogacy permitted in the country. The surrogate is not allowed to receive any monetary compensation, except for coverage of her medical expenses and insurance costs during the process. The new regulations also impose a blanket ban on commercial surrogacy and the use of surrogacy for non-medical reasons. The surrogate mother must be a “genetically related to the intending couple or intending woman” and must have given birth to at least one child herself.

Though aimed at preventing exploitation and commercialisation, these measures have also closed doors for individuals without a partner who wish to become parents.

One of the last known exceptions occurred in 2021, just before the new law was implemented. A single man from Surat, unable to find a partner apparently due to his employment status, successfully became a father to twins—a boy and a girl—through surrogacy. Made possible only by the timing of his application before the law took effect, this case remains a rare instance.

Who can become a surrogate?

To be eligible to act as a surrogate mother under the Surrogacy (Regulation) Act, 2021, a woman must meet several strict criteria to obtain a certificate of eligibility from the appropriate authority.

She must be a married woman aged between 25 and 35 years, and must have at least one biological child of her own. Importantly, the woman must be willing to act as a surrogate, must not use her own gametes (egg cells) in the process, and is allowed to act as a surrogate only once in her lifetime.

Additionally, she must obtain a certificate of medical and psychological fitness confirming her suitability for surrogacy. These conditions are laid out to ensure the well-being and informed consent of the surrogate, while also maintaining ethical standards.

(Edited by Ajeet Tiwari)


Also read: Govt tells SC why it won’t change surrogacy law — ‘given societal norms, law in its current form appropriate’


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