The Supreme Court has agreed to examine whether provisions of the Surrogacy (Regulation) Act that prevent married couples with one surviving child from opting for surrogacy to have a second child amount to an unreasonable restriction on reproductive rights.
A bench of Justices B.V. Nagarathna and R. Mahadevan issued notice on a petition filed by a couple suffering from secondary infertility — a condition where a woman is unable to conceive or carry a pregnancy after previously giving birth.
Under the current law, an intending couple having any surviving child — whether biological, adopted, or born through surrogacy — is barred from availing surrogacy for a second child. An exception exists only if the existing child is mentally or physically challenged or suffers from a life-threatening disorder or illness with no permanent cure, in which case the couple may seek approval from a district medical board and the appropriate authority.
During the hearing, Justice Nagarathna orally observed that the restriction “appears reasonable in view of the growing population of the country,” while clarifying that the Court would examine the larger constitutional issue involved.
The petitioner’s counsel contended that the State cannot interfere in the private lives and reproductive choices of citizens, arguing that the right to procreation is a facet of personal liberty under Article 21. The lawyer further submitted that the definition of “infertility” under both the Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act does not limit the condition to only primary infertility.
The matter will now be heard on a later date for detailed consideration of whether the statutory bar infringes the fundamental right to reproductive autonomy.
