The baby, first

Surrogacy privileges for single men must be weighed against the central need to protect children 

Gestational surrogacy is now half a century old. The decades have seen demand for it grow and grow. But the regulations scrambling to administer it have travelled a zigzag line, constantly excluding-including people and activities depending on social negotiations. In Italy, for example, religious conservatives first succeeded in making surrogacy illegal and then a ‘universal crime’ on par with genocide. India has gone from being a popular global destination for commercial surrogacy, to banning it. Further, in 2021 a new law set out narrow terms for who can avail even altruistic surrogacy, which have been challenged by different excluded groups. What the challenges at core reflect is people’s desire to have a child of their ‘own’, when science is there to help overcome personal circumstances keeping it from being fulfilled.

One challenge the Supreme Court is set to consider is whether disallowing a divorced man from having a child through surrogacy is unconstitutional. This is in the context of the law allowing widowed and divorced women between the age of 35 and 45 years to avail surrogacy. Note that never-married women are just as excluded as the petitioner, as are ever-married women outside of the 35-45 age group, and same-sex couples. Odd exclusions have been placed on married couples as well. The various exclusions reflect odd notions of who would make a good parent. There is an arbitrariness to it all that definitely needs reviewing by the apex court. 

But not all challenges are on the same footing. Given that sexual crimes are overwhelmingly dominated by men, the surrogacy privileges of single men should necessarily draw greater scrutiny. Especially as, everywhere, sexual crimes against children have been extra difficult to police. Complicated as the surrogacy rights terrain is, the interests of the child have to be at its centre.