Mumbai, Apr 21 (PTI) The Bombay High Court on Monday raised concerns about the potential wider repercussions of allowing a 36-year-old divorced woman with two existing children to pursue surrogacy, saying such a decision could inadvertently lead to the commercialisation of the practice.

A division bench comprising Justices G S Kulkarni and Advait Sethna emphasised that the court must also consider the rights and well-being of the child born through surrogacy, and not solely focus on the desires of the intending woman.

The bench was hearing a petition filed by the woman, who is divorced and has two children currently in the custody of their father. She is seeking the court’s permission to undergo surrogacy.

“This petition also pertains to a larger issue. In this view, we are of the opinion that the petitioner can approach the Supreme Court and seek interference in the matters pending there. We are unable to grant any interim relief at this stage. We adjourn the matter sine dine (indefinitely),” the High Court said.

The court said the present case may be genuine but allowing the same may have wider repercussions. This is not a simple case and involves a larger issue, the HC added.

“This may lead to commercialisation of surrogacy. There are some rights of the child too once born. We cannot just think about women’s rights. Look at the repercussions,” the court said.

In her plea, submitted through advocate Tejas Dande, the woman stated her inability to conceive naturally due to a prior medical removal of her uterus. She also conveyed her intention not to remarry.

Her application was rejected by Pune Civil hospital because she already has two children and did not meet the definition of an “intending woman” under the Surrogacy Act.

The Surrogacy (Regulation) Act, 2021, provides for “intending couples” who are Indian nationals, married, between 23 and 50 years for the female and 26 and 55 years for the male, and having no surviving child.

Single women like divorcees and widows are also allowed but they should be between 35 and 45 years old and must not have a surviving child or a surviving child with a life-threatening illness.

The high court on Monday noted that the Supreme Court was seized of several matters related to the definition of “intending woman” and if a single unmarried woman also falls under this purview.

The bench questioned what happens if in future an unmarried couple seeks to go for surrogacy but then later they separate.

“Is that the intention of the legislation? Is it permissible under law?” the court questioned.

The woman in her plea sought a direction to National and State Assisted Reproductive Technology and Surrogacy Board to grant her a certificate of medical indication under Surrogacy (Regulation) Act and to allow her to undergo the consequential procedures required for surrogacy.

As per the plea, the woman got married in 2002 and has two children.

In 2012, she underwent a hysterectomy procedure.

In 2017, the woman got divorced and the two children are presently in the custody of their father and she has no access to them.

The woman now wishes to have a child through assisted reproductive techniques and since she has no uterus the only option available is surrogacy.

The woman’s advocate Tejas Dande said she falls under the definition of ‘intending woman’, that is a single person or divorcee under the Surrogacy Act.

As per the petition, the woman’s eggs could be used for the surrogacy procedure and that a recommendation letter was addressed by the medical director of a private hospital in Pune to the civil surgeon of the district hospital there.

“Being a divorcee and living alone, the petitioner who is still young seeks to resort to surrogacy for achieving motherhood. The petitioner does not have any mother-child relation with her two children,” the petition said. PTI SP SKL BNM