Must Save Institution of Marriage: Why Supreme Court Won't Let A 44-Year-Old Single Woman Have A Child Via Surrogacy

New Delhi: The Supreme Court of India on Monday said that it is important to save the institution of marriage and India cannot go in the direction of Western nations where children being born out of marriage is not uncommon, Times Of India reported. The top court made the observation while denying a 44-year-old single woman to bear a child through surrogacy.

The petitioner, a 44-year-old woman working at a multinational corporation, had approached the Supreme Court challenging the validity of one of the sections of India's surrogacy regulation law.

The section that she sought to challenge -- Section 2(s) of the Surrogacy (Regulation) Act -- defines an 'intending woman' as "an Indian woman who is a widow or divorcee between the age of 35 years and 45 years'.

Intending woman, here in, is a woman who seeks to have a child through surrogacy, a method by which another woman bears a child for a couple or another woman.

According to the law, an unmarried woman is not allowed to become a mother through surrogacy.

The petitioner argued that the law is discriminatory and without reason. "...The said restrictions not only infringe on the fundamental rights of the petitioner but are also violative of basic human rights of an individual to found a family as recognised by the UN and reproductive rights...recognised as an aspect of personal liberty under Article 21."

On hearing the petition, the top court said the woman had other options for becoming a mother, like getting married or adopting a child. But the petitioner said she did not want to marry and the waiting time for adoption is very long.

The Supreme Court bench of Justices BV Nagarathna and Augustine George said it is a norm in India to become a mother within the institution of marriage. The institution of marriage could not be thrown out the window, the top court remarked, the Times Of India report said.

"It is difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life," said the court.

Addressing the petitioner's lawyer, the Supreme Court said, "Your client preferred to remain single. We are also concerned about the institution of marriage. We are not like the West where many children do not know about their fathers and mothers. We do not want children roaming here without knowing about their fathers and mothers."

The court said a single woman bearing a child outside marriage was not a rule in Indian society, but an exception.

The court said it was speaking of saving the institution of marriage from the point of view of the child's welfare. "Should the institution of marriage survive or not in the country? We are not like western countries. The institution of marriage has to be protected. You can call and tag us conservative and we accept it," Justice BV Nagarathna said, the Times Of India reported.