“Outsourcing” child birth will allow me to “live freely” says petitioner who has challenged surrogacy law

The co-petitioner, who is a single man, questions why his marital status should exclude him from the law

The trauma and fatigue from her first pregnancy, which coincided with the second wave of COVID-19 last year, juggling multiple responsibilities as a new mother and a desire to resume her practice as a psychologist are the reasons why a 31-year-old married woman now wishes to “outsource” the birth of her second child to be able to “live freely”. She has subsequently approached the Delhi High Court along with another male petitioner to question why marital status, age or gender should be criteria for prohibiting someone from commissioning a surrogacy.

Under the Surrogacy (Regulation) Act, 2021 a married couple can opt for surrogacy only on medical grounds. The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age of 23 year to 50 years and the man between 26 years to 55 years. The couple should not have a child of their own. Though the law allows single women to resort to surrogacy, she has to be a widow or a divorcee between the age of 35 to 45 years. Single men are not eligible.

The 31-year-old Noida resident, who does not want to be identified, and Delhi-based lawyer Karan Balraj Mehta, who is single, have challenged the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which also provides a regulatory framework for surrogacy in Delhi High Court. They have also challenged the ban on commercial surrogacy. Last week, the court sought a response from the Centre to their petition.

“My first pregnancy was not a cakewalk. No pregnancy is, but mine came after a miscarriage and during COVID-19 so it was a particularly stressful and traumatic time for me, and therefore, if I want a second child I would rather outsource it,” the petitioner told The Hindu in a telephonic interview. She is a mother to a nine-month old and says women like her who are in a marriage and medically fit should also be allowed the option of surrogacy.

She believes that a second child is “necessary for the wellbeing of the first child”, but the decision for her to have one is a “hard no” because the “thought of a second pregnancy scares me” and “to navigate my pregnancy, my first child, my house is just not conceivable at the moment”.

“If the option of surrogacy available to me, I can spend nine months looking after my first child, and not be burdened with my own health and food because these are things you have to take care of. And then I can provide for the second child when that comes,” she said.

She also does not want to put off her career any more. After spending six years completing her PhD, she now yearns to return to her practice as a clinical psychologist.