Supreme Court to Review Surrogacy Laws, Couples' Right to Second Child Questioned

Supreme Court reviews Surrogacy Act's restriction on second child via surrogacy. Couples challenge law citing reproductive rights. Debate over family values and medical necessity ensues.

The Supreme Court has called upon the Central government to respond to a plea contesting the prohibition on married couples having a second child through surrogacy if they already have a healthy first child.

Justices BV Nagarathna and Augustine George Masih issued notice to the Central government after hearing advocate Mohini Priya, representing the petitioners.

The Surrogacy Act currently restricts couples with secondary infertility from accessing surrogacy benefits. Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021 mandates an eligibility certificate confirming the absence of any surviving child, whether biological, adopted, or through surrogacy, for couples seeking surrogacy.

The petitioners argue that married couples possess the right to exercise their reproductive choice by opting for surrogacy to conceive a second child. They assert that the plea aims to curb unnecessary State intervention in citizens' private lives.

According to the petition, the challenged section lacks rational justification. It contends that having two children fosters values of sharing, caring, and strengthens familial bonds. Additionally, having a genetically linked sibling could serve as a potential donor for bone marrow, tissue, or organs if needed.

The petitioners urge the Court to reinterpret the restriction in Section 4, allowing couples to pursue surrogacy for a second child.

Meanwhile, the Supreme Court is already examining a series of public interest litigation (PIL) petitions challenging the ban on commercial surrogacy. These petitions contest the validity of both the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, alongside the associated Rules.

Last October, the Supreme Court expressed concern that a complete ban on using donor gametes in gestational surrogacies might conflict with these Rules.

Additionally, the Court is reviewing two petitions challenging the constitutionality of Section 2(1) (s) of the Surrogacy Act, which prohibits unmarried women from serving as surrogate mothers.