SC issues Notice to Centre on plea Challenging Exclusion of Married Couples from having Second child through Surrogacy

The Supreme Court on Friday agreed to examine a plea challenging the provision of the Surrogacy (Regulation) Act, 2021 debarring a married couple from having their second child through surrogacy if they have a surviving child biologically or through adoption or surrogacy earlier.

Issuing notice, a bench of Justices B.V. Nagarathna and Augustine George Masih asked the Centre to file its reply to the plea filed by a married couple challenging the constitutional validity of Section 4(iii)(C)(II) of the surrogacy law.

The petition, filed by advocate Mohini Priya, said that the aforesaid provision is irrational, discriminatory and without any sound determining principles and in gross violation of the reproductive rights of a woman guaranteed under Article 21 of the Constitution.

It said that the impugned section excludes from within its ambit the cases of married couples suffering from secondary infertility, which is the most prevalent form of infertility today.

“While the Surrogacy Act lays down several medical conditions which could qualify as primary infertility necessitating gestational surrogacy under Rule 14 of the Surrogacy Rules, it completely fails to take into account the cases of secondary infertility,” it said, adding that there seems to be no rationale behind such distinction created on the basis of the intending couple having a surviving child.

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The petitioners in the instant case, a married couple having one normal biological child through natural conception, are desirous of begetting their second child with surrogacy as the woman after her first delivery developed secondary infertility and it is life-threatening for her to conceive a child through natural means or IVF.

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