Supreme Court seeks Centre's response on plea against exclusion of transwomen from surrogacy law

The Supreme Court on Monday issued notice to the Central government on a public interest litigation (PIL) petition challenging the exclusion of single unmarried women and transgender persons from the application of Surrogacy (Regulation) Act, 2021 [Dr Aqsa Shaikh v. Union of India and Others]..A division bench of Justice BV Nagarathna and Justice Dipankar Dutta sought the response of the Union of India through the Ministry of Health and Family Welfare, Ministry of Law and Justice and Ministry of Woman and Child Development.However, the Court did not tag the matter with the already pending petitions challenging the same rule."We would have to segregate this. Because in all other cases, there are married woman (as petitioners). You are coming for transgender persons and single woman. We would have to segregate this and not tag," Justice Nagarathna said..The plea was filed by a 41-year-old transwoman and activist Dr. Aqsa Shaikh, who has argued that exclusion of single unmarried women and trans persons from surrogacy procedures is violative of Articles 14, 15(1) and 21 of the Constitution.She has also contended that exclusion of queer and transgender persons from availing surrogacy amounts to discrimination on the ground of gender identity and sexual orientation"The Rules and Amendment Notification state that only married couples or women who are divorced or widowed can avail of surrogacy procedures, thus excluding single unmarried women and transgender persons from availing surrogacy. As such, all women who are single, and never married, or women in live-in relationships, women in same-sex relationships and queer women are completely excluded from availing surrogacy procedures," the plea said..Shaikh has contended that exclusion of single women and transgender persons from availing surrogacy procedures denies them the right to start a family life through surrogacy."By such exclusion from availing surrogacy and through it the right to form a family, the statute discriminates on the basis of marital status and gender identity and violates women’s right to reproductive autonomy. Excluding unmarried single women from within the remit of “intending woman” is a sex-based classification under Article 15(1) as it is based on women’s marital status or single status," the petition states.Such exclusion without any justification perpetuates negative stereotypes against single unmarried women that they are incapable of parenthood which has been held to be unconstitutional by the Supreme Court, it adds..As per the plea, transgender people are increasingly opting for surrogacy as their chosen path for building a family."Transgender persons who have stored eggs or sperm before their gender affirmation procedures, may have eggs, sperm or embryos in storage available for them to use in a surrogacy process. Alternatively, they may be able to provide eggs or sperm to create embryos to conceive a child through surrogacy. However, Section 2 (s) of the Act, only refers to “intending woman” and does not include transgender persons, and therefore they would be excluded from using surrogacy procedures to have a child," Shaikh's plea says..The petition was filed through Radiam Law firm.