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The Supreme Court connected Tuesday (November 4, 2025) decided to analyse whether a instrumentality banning joined couples facing secondary infertility from utilizing surrogacy to person a 2nd kid amounts to a authorities regularisation connected the reproductive choices of citizens.
The Union authorities has supported the constitutionality of the ineligible provision, Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, arguing that availing surrogacy cannot beryllium claimed arsenic a cardinal right. It has contended that surrogacy involves the usage of the womb of different woman, the surrogate mother, and should beryllium availed lone aft each different options to attain parenthood person failed, including earthy commencement and assisted reproductive technologies (ART).
“The Constitution does not recognise a close implicit different individual’s body. Thus, the close to avail surrogacy cannot beryllium claimed arsenic a cardinal close and exists purely arsenic a statutory close taxable to conditions/restrictions prescribed successful the 2021 Act,” the authorities submitted successful the apical court.
‘Emotionally challenging’
Appearing earlier a Bench headed by Justice B.V. Nagarathna connected Tuesday, advocator Mohini Priya, representing a mates facing secondary infertility and seeking to usage surrogacy, argued that the authorities cannot interfere successful the backstage lives and reproductive choices of citizens.
“Secondary infertility is simply a analyzable and emotionally challenging contented that galore couples look erstwhile they conflict to conceive a 2nd kid aft having successfully fixed commencement to 1 oregon much children previously. This condition, often shrouded successful stigma and misconceptions, tin beryllium conscionable arsenic distressing arsenic superior infertility,” Ms. Priya submitted.
The lawyer submitted that the explanation of ‘infertility’ successful the discourse of surrogacy some successful the ART Act and the Surrogacy Act was not restricted to lone superior infertility. She urged the tribunal to work down Section 4(iii)(C)(II) to let couples with secondary infertility to person a 2nd kid done surrogacy.
Balancing interests
The authorities pointed to the proviso to the Section, which offers an objection for couples with a kid who is mentally oregon physically challenged oregon suffers from a life-threatening upset oregon a fatal unwellness with nary imperishable cure. This applies whether their existing kid is biologically theirs, adopted, oregon done surrogacy.
“This is simply a well-considered proviso which balances the interests of an intending mates who whitethorn person a genuine, sedate request to person a 2nd kid done surrogacy, portion ensuring that a surrogacy process is not availed and a surrogate parent does not acquisition an full gestation erstwhile the intending mates already has a healthy, surviving child,” the Centre said, backing the restriction.
‘No one-child policy’
Justice Nagarathna orally remarked successful tribunal that the regularisation imposed nether the proviso was “reasonable”. The judge, connected 1 occasion, referred to the burgeoning colonisation of the country.
Ms. Priya noted that the state does not person a “one-child policy”, insisting that couples could guarantee the champion interests of their archetypal kid portion availing of surrogacy for a 2nd child.
She referred to the Adoption Regulations, 2017 nether the Juvenile Justice Act, 2015, which let 3 children of immoderate sex to beryllium adopted. Further, Section 11 of the Hindu Adoption and Maintenance Act permits the adoption of a 2nd kid erstwhile a mates already has a biologic kid of their own.
