SC to Review Surrogacy Ban on Couples with One Child

Why in News? 

The Supreme Court has decided to examine the constitutionality of a law that bans married couples facing secondary infertility from using surrogacy to have a second child.

UPSC Relevance 

Prelims, GS 

Legal Provision

• The specific legal provision under scrutiny is Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, that bans married couples facing secondary infertility from using surrogacy to have a second child.
• The review will assess whether this ban amounts to a state restriction on the reproductive choices of citizens.

Centre’s Stance and Arguments (Supporting the Ban)

• It argues that availing surrogacy cannot be claimed as a fundamental right, but exists purely as a statutory right subject to conditions and restrictions.
• The Centre contends that surrogacy involves the use of another woman’s body (the surrogate mother’s womb) and should only be a last resort, after all other options (natural birth, ART) have failed.
• The government submitted that the Constitution does not recognize a right over another individual’s body.
• The Centre points to an exception in the Section, which allows surrogacy for a second child if the existing child is mentally or physically challenged, suffers from a life-threatening disorder, or a fatal illness with no permanent cure.
• The government calls this exception a “well-considered provision” that balances the intending couple’s genuine need against preventing the use of a surrogate mother when the couple already has a healthy child.

Petitioner’s Arguments (Challenging the Ban)

• The petitioner, a couple facing secondary infertility, argues that the state cannot interfere in the private lives and reproductive choices of citizens.
• The petitioner’s advocate, Mohini Priya, highlighted that secondary infertility (struggling to conceive a second child) is a complex and emotionally challenging condition that can be as distressing as primary infertility.
• The lawyer submitted that the definition of “infertility” in the ART Act and the Surrogacy Act is not restricted to primary infertility.
• The advocate also noted that India does not have a “one-child policy”, citing the Adoption Regulations, 2017, which allows for the adoption of up to three children.

Recent SC Rulings

• Age Restriction Ruling (October 9, 2025): A bench including Justice B.V. Nagarathna ruled that the age restrictions under the Act will not apply retrospectively to couples who had already commenced the surrogacy process (like freezing embryos) before the Act came into force on January 25, 2022.
  • This ruling emphasized that the right to make reproductive choices is a facet of personal liberty and privacy under Article 21 of the Constitution.

Read more on Surrogacy Act, 2021

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