The Legal Conundrum: Seeking Legitimacy of Children

A bench comprising Justices BV Nagarathna and Augustine George Masih probed the existing law that confers legitimacy upon children born outside the formal institution of marriage. The distinction between void and voidable marriages, where the former is invalid from the start and the latter can be invalidated through a decree, adds layers of complexity to the legal discussion. In a thought-provoking inquiry, the Supreme Court of India has sought clarification on the legal standing of children born outside formal marriages, be they void or voidable. The questioning occurred during the hearing of a series of pleas challenging provisions of the Surrogacy (Regulations) Rules, 2022, and the Assisted Reproductive Technology (Regulations) (ART) Act of 2021.

Legitimacy of Children: Section 16 of Hindu Marriage Act

Section 16 of the Hindu Marriage Act was cited during the proceedings, emphasizing that even if a marriage is null and void under the law, any child of such a marriage, who would have been legitimate if the marriage had been valid, shall be considered legitimate. The court pressed for a comprehensive understanding of the legal basis for conferring legitimacy to children born outside formal marriage ceremonies.

Surrogacy and Conception within Marriage: Bench’s Perspective

Justice Nagarathna, while acknowledging an open mind on the matter, stressed that for availing the benefits of surrogacy provisions, there must be an attempt for conception within marriage. The court expressed its stance, saying, “Conception within marriage is what you call a legitimate child.” The bench sought clarity on whether there are alternative laws that grant legitimacy to children born outside the bounds of formal marriage ceremonies.

Government’s Response: Assurances and Assistance

Additional Solicitor General Aishwarya Bhati, representing the Centre, assured the court of assistance on the matter. While stating that there are no longer concepts of legitimate or illegitimate children, Bhati pledged the government’s support in aiding the court’s view on the issue. The court acknowledged that the legal landscape has evolved, particularly with advancements in Assisted Reproductive Technology (ART).

Ongoing Challenges and Future Considerations

The bench clarified that it is not disposing of petitions from single unmarried women seeking the benefits of surrogacy law and those challenging other provisions of the law. The court requested written submissions on the issue of single unmarried women. Additionally, medical reports of some petitioners, necessary under surrogacy law, are pending review. The court emphasized the need to adhere to Rule 14, which outlines medical conditions warranting surrogacy.

Appreciation for Government’s Responsive Stance

The Supreme Court commended the Centre for its proactive approach, acknowledging the “right spirit” in which the government issued a notification on February 21, 2024, amending the surrogacy rules. The amendment permits married couples to use an egg or sperm donor when one partner faces a medical condition.

Conclusion: Legal Perspectives on Surrogacy and Legitimacy of Children

As the legal proceedings unfold, the court’s scrutiny sheds light on evolving legal perspectives surrounding surrogacy, legitimacy, and the rights of individuals born outside traditional marital structures. The outcomes of this legal discourse have the potential to influence future legislation and practices concerning assisted reproductive technologies and family law in India.

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