Introduction

The Surrogacy (Regulation) Act, 2021 stipulates that an “intending couple” is eligible for surrogacy only if they do not have any surviving child, biological, adopted or via surrogacy, except where the child is physically or mentally challenged or has a life-threatening disorder.A petition has been filed before the Supreme Court by a couple facing secondary infertility who seek to use surrogacy to have a second child. Their argument: the law’s restriction interferes with the reproductive choices of citizens and treats primary and secondary infertility differently.

What is the law’s objective and rationale

1. Objective of the Act: The primary stated purpose is to prohibit commercial surrogacy, regulate fertility and surrogacy clinics, and protect surrogate mothers and children born through surrogacy.
2. Eligibility restriction: Section 4(iii)(C)(II) mandates the ‘no surviving child’ condition for an intending couple.
3. Rationale for restriction: The government’s position is that the use of another woman’s body for surrogacy demands strict regulation; therefore, limiting eligibility helps prevent exploitation and commercialization.
4. Court’s interim view: The Supreme Court has indicated the restriction appears “reasonable” but is examining whether the ban on surrogacy for couples with a surviving child amounts to a violation of reproductive choice.

How does the law differentiate primary and secondary infertility

1. Secondary infertility defined: In this context, it refers to couples unable to conceive or carry a pregnancy to term despite having borne a child naturally earlier.
2. Law’s silence on distinction: The Act does not expressly differentiate between primary and secondary infertility in defining “infertility” for eligibility. The petitioners argue the statute uses “infertility” generically and should be read to include secondary infertility.
3. Effect of the distinction: As a result of the clause, a couple with one surviving (healthy) child is barred from surrogacy for a second child, even if they face medical infertility. The petition argues this amounts to unreasonable discrimination.

Why is this matter significant now?

1. Reproductive autonomy at stake: The case raises the question whether reproductive choice including whether and how many children to have falls under the fundamental right to privacy and reproductive autonomy (Article 21).
2. Scale of the issue: Secondary infertility affects a substantial number of couples; the law’s bar effectively restricts access to surrogacy for many intending parents. The article emphasises that restricting access solely because a couple already has a child may not align with the law’s stated objective.
3. Precedents of regulation being diluted: The Court recently relaxed age restrictions for couples who had frozen embryos prior to the law’s enactment, signalling willingness to interpret surrogacy law expansively.
4. Contradiction with other family-related rights: There is no law in India capping the number of children a person may have naturally; yet, the surrogacy law imposes a “one-child existing” rule. This invites scrutiny of rational basis for differentiation.

What are the potential implications of a broader interpretation”

1. Facilitating access: A more expansive reading allowing surrogacy for intending parents would align the law with reproductive autonomy and reduce arbitrary differentiation.
2. Safeguard against exploitation: The law can maintain its core safeguards against commercialisation and exploitation while enabling access for medically infertile couples seeking a second child.
3. Policy coherence: It would harmonise the surrogacy statute’s eligibility norms with the lack of statutory restriction on the number of natural children and prevent unjust exclusion of couples.
4. Legal precedent: A favourable interpretation could open up examination of other eligibility criteria under the Act (such as age or marital status) in light of constitutional rights.

What are the counter-arguments and concerns?

1. Risk of commercial surrogacy revival: Critics argue liberalising eligibility may inadvertently open doors to exploitation of surrogate mothers and a resurgence of commercial surrogacy in disguised form.
2. Resource and monitoring constraints: Greater eligibility implies more oversight burden on regulatory infrastructure (ART clinics, surrogacy boards, monitoring of insurance/compensation).
3. State interest in regulation: The restriction can be defended as within the State’s margin of appreciation to regulate surrogacy in public interest, preserving dignity of women and children.
4. Potential slippery slope: Expanding eligibility might raise questions about single individuals, LGBTQ+ couples or live-in partners accessing surrogacy, aspects the law currently restricts.

Conclusion

The surrogacy debate in India reflects the evolving tension between state regulation and personal autonomy. While the law rightly seeks to prevent exploitation and commercialisation, it must not overlook the constitutional promise of reproductive freedom and equality. A more inclusive, rights-based interpretation, sensitive to medical realities like secondary infertility, would uphold both ethical safeguards and individual dignity, aligning the law with India’s vision of gender justice and compassionate governance.

PYQ Relevance

[UPSC 2023] Explain the constitutional perspectives of Gender Justice with the help of relevant constitutional provisions and case laws.

Linkage: This question is key as it tests understanding of Articles 14, 15 and 21 on women’s equality and autonomy. This is central to debates like the Surrogacy Act 2021, which restricts reproductive choice and raises issues of bodily rights and gender justice.

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