issue on surrogacy for a second child

Supreme Court is examining whether banning married couples with secondary infertility from using surrogacy for a second child violates reproductive rights.

Under Surrogacy (Regulation) Act, 2021, couples can opt for surrogacy only if they have no surviving child.

Petitioners: couple with secondary infertility (inability to conceive despite previously birthing a child).

Argue that:

• The law interferes with privacy and reproductive autonomy (Article 21).

• “Infertility” definition under ART Act and Surrogacy Act does not limit infertility to first-child cases.

Section 4(iii)(C)(II) of Surrogacy Act, 2021:

• Surrogacy allowed only if couple has no surviving child (biological/adopted/surrogacy).

• Exceptions: existing child is mentally/physically challenged, suffering life-threatening disorder.

Thus secondary infertility is not recognised for surrogacy access.

Surrogacy is not a fundamental right.

Involves use of another woman’s body, thus reasonable restrictions are justified.

The restriction is “reasonable” and consistent with intent: preventing commercialization.

SC earlier relaxed age criteria for couples with frozen embryos before the Act.(i.e,surrogacy law cannot be applied retrospectively)

Now examining whether denying surrogacy for second child violates reproductive choices protected under right to privacy.

No law restricts number of children in India (some States only incentivise two-child norm).

Distinguishing between primary vs secondary infertility is arbitrary.

Law’s stated objective:

• Prevent commercial surrogacy exploitation.

• Regulate fertility clinics (via ART Act).

Thus restricting second-child surrogacy may not further legislative intent.

• Prevent commercial and exploitative surrogacy.

• Promote altruistic surrogacy only.

• Regulate ART and surrogacy clinics (in coordination with ART Act, 2021).

• Only altruistic surrogacy permitted (no monetary compensation; only medical expenses).

• Prohibits commercial surrogacy (punishable with up to 10 years jail + fine).

• Surrogacy only for:

  • Indian married couple (5 yrs marriage).

  • Infertility certificate required.

  • No surviving child (Section 4(iii)(C)(II)).

  • Exceptions: disabled/ill child.

• Commissioning couple:

  • Woman 23–50; Man 26–55.

  • No surviving child.

• Surrogate mother:

  • Married woman with one biological child.

  • Can be surrogate once in her lifetime.

  • Must be close relative (originally) — later modified by SC allowing any willing woman as surrogate.

• The Act allows surrogacy only for Indian married heterosexual couples:

• Married man (26–55 yrs) and woman (23–50 yrs)

• “Couple” is defined strictly as a husband and wife

Marital status: Must be a widow or a divorcee.

Age: Must be between 35 and 45 years old.

Gametes: Must use her own eggs and a donor sperm.

Children: This eligibility is contingent on not having a surviving child from a previous relationship.

Transgender persons, including transgender men and women (even if legally married),

Same-sex couples,

Non-binary persons,

are excluded from accessing surrogacy.

The Act defines eligibility using the terms “husband” and “wife”, not “spouses”.

The Transgender Persons (Protection of Rights) Act, 2019 permits self-identification, but the Surrogacy Act has not been updated to align with it.

Thus, transgender couples cannot legally opt for surrogacy in India under the current law.

• Over-regulatory; restricts access.

• Excludes single parents, LGBTQ+ couples, live-in partners.

• “No surviving child” clause viewed as arbitrary and discriminatory.

• Encourages cross-border surrogacy and underground markets.

The Act allows surrogacy for:

• Married heterosexual couples

• Single women (widow/divorcee)

Transgender couples, same-sex couples are not recognised.