Surrogacy Ban on Couples with One Child

Surrogacy Ban on Couples with One Child

Syllabus Areas:

GS II - Polity and Governance

The Supreme Court has agreed to examine the constitutional validity of a provision in the Surrogacy (Regulation) Act, 2021, which restricts married couples with a biological child from using surrogacy for a second child, raising questions on reproductive rights.

• The Supreme Court of India has agreed to examine the constitutional validity of Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021.
• This provision bans married couples who already have a biological child from availing surrogacy for a second child, even if they are facing secondary infertility.
• The question before the court: Does this restriction violate citizens’ reproductive choices and privacy rights under the Constitution?

Government’s Stand

• The Union Government has supported the legality and constitutionality of the restriction.
• Its arguments include:
  • Surrogacy is not a fundamental right, but a statutory privilege, governed by conditions in the law.
  • It involves the use of another woman’s womb, hence cannot be claimed as an absolute personal right.
  • The Constitution does not recognise a right over another individual’s body, so surrogacy cannot fall under the ambit of fundamental rights.
  • Surrogacy should be a last resort, used only after all other means of parenthood—natural conception and assisted reproductive technologies (ART)—have failed.

Petitioner’s Argument (Couple’s Side)

• Advocate Mohini Priya, representing a couple with secondary infertility, challenged the restriction as unconstitutional interference in citizens’ private and reproductive choices.
• She argued:
  • Secondary infertility—difficulty conceiving a second child—is a genuine medical and emotional issue, equally distressing as primary infertility.
  • The definition of “infertility” in both the ART Act and the Surrogacy Actdoes not limit infertility to the first child.
  • Therefore, couples facing secondary infertility should also be eligible to use surrogacy.
  • Requested the court to “read down” Section 4(iii)(C)(II) to make it inclusive of such cases.

Government’s Justification for Restriction

• The proviso to the section allows exceptions — couples can go for surrogacy for a second child only if:
  • Their existing child is mentally or physically challenged,
  • Suffers from a life-threatening disorder, or
  • Has a fatal illness with no permanent cure.
• This exception applies regardless of whether the first child is biological, adopted, or born via surrogacy.
• The Centre said this balances compassion with regulation:
  • It prevents misuse of surrogacy,
  • Protects surrogate mothers from unnecessary physical and emotional burdens,
  • Avoids surrogacy when the couple already has a healthy child.

Supreme Court’s Observation

• Justice B.V. Nagarathna, heading the Bench, observed that the restriction seems “reasonable” under current circumstances.
• The judge also mentioned India’s rising population while discussing the rationale for such legal limits.
• However, the Court will still examine whether the restriction infringes on reproductive rights.

Counterpoints by the Petitioner

• The petitioner opposed the population-based reasoning, stating that:
  • India does not follow a one-child policy.
  • Couples should be free to decide family size, especially when dealing with genuine medical issues.
  • She cited the Adoption Regulations, 2017 under the Juvenile Justice Act, 2015, which allow up to three children (of any gender) to be adopted — showing that the law does not restrict having multiple children.

Broader Constitutional Issue

• The case brings up a fundamental question:
  • Where is the line between state regulation and personal autonomy in reproductive decisions?
  • Can the right to privacy and reproductive freedom (recognized in earlier judgments like Puttaswamy v. Union of India, 2017) extend to surrogacy, which involves a third person’s body?

Line between State Regulation and Personal Autonomy

• Autonomy in reproductive choices—whether to conceive, adopt, or use ART—is part of an individual’s right to privacy under Article 21.
• However, the State can regulate such rights through reasonable restrictions to protect public health, morality, and rights of others—here, the surrogate mother.
• Surrogacy laws aim to prevent exploitation, ensure informed consent, and maintain ethical medical practices.
• Thus, the line lies where personal liberty begins to affect another’s bodily autonomy or societal interest.

Extent of Privacy and Reproductive Freedom

• The Puttaswamy (2017) judgment recognized privacy and decisional autonomy as fundamental rights, including reproductive choices.
• Yet, surrogacy differs from natural conception because it involves a third person’s body, making absolute autonomy impossible.
• The State’s role is to safeguard both the intending parents’ rights and the surrogate’s dignity and welfare.
• Therefore, while the right to parenthood exists, the mode of achieving it (surrogacy) remains subject to statutory regulation.

Prelims Questions:

Mains Question:

• Critically examine the significance of the Assisted Reproductive Technology (Regulation) Act, 2021 in ensuring ethical governance of fertility treatments in India. What challenges remain in its effective implementation? 250 Words 15 Marks