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 years 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 and 45 years. Single men are not eligible.
The woman petitioner, 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.
“My immediate concern is to get back to work, but if I have to go through the rigmarole of pregnancy again, you have to let go of a lot of things. At least the time before child birth you can have for yourself and for your career.”
Denial of choice
What agitates her is the denial of choice under the law.
“We should be able to live the way we want, have the choice to make the choices we want to. Such decisions should not be contingent on medical situation, marital status or sexuality. If you want to have a biological child you should have the option to do it via surrogacy to live freely,” she says.
Her co-petitioner, who is a 32-year-old single man and a lawyer, too says that the two laws deny the “freedom given to us under the Constitution to exercise our reproductive choice.”
“I have always had a deep desire to have a child of my own. Although I am not married yet, I wish to have the choice irrespective. Why should my marital status determine if I can be a father or not. These laws discriminate against men like me,” he says. He feels that perhaps his profession which exposes him to cases of marital discord could have played a role in his decision.
Since the news of his petition he has been inundated with messages from all over the country from single men who have similar stories and say they are watching the developments with bated breath.
Many celebrities like Shah Rukh Khan and Karan Johar have children from surrogacy. This was because the law was passed in December 2021.
He also says that under the current law there is hardly any privacy. “This is something you should be able to choose privately. But I have to find a relative who will agree to be a surrogate mother. I will obviously not go to my sister or my aunt, which means I have to go looking for the right person in my extended family but discussing such an issue can be awkward.” The law requires that the surrogate mother should be genetically related to those seeking a child as it permits only altruistic surrogacy and bans commercial surrogacy where there is exchange of money.
Mr. Balraj says he has been interested in surrogacy for a long time and “challenging the law was a natural decision for me, it was only a matter of when.”
But his 82-year-old grandmother is a little worried about such reproductive choices. “What will happen to marriages,” she wonders.
