Supreme Court Examines Surrogacy Rights for Second Child

The Supreme Court of India is currently reviewing the legality of surrogacy for couples seeking a second child. This follows a petition by a couple facing secondary infertility. Under the Surrogacy (Regulation) Act, 2021, surrogacy is permitted only if the couple has no surviving child. The Court is weighing whether this restriction infringes on reproductive rights.

Context of the Surrogacy Law

The Surrogacy (Regulation) Act, 2021, aims to regulate surrogacy practices and prevent exploitation. It bans commercial surrogacy and allows only altruistic surrogacy. The law permits surrogacy for couples without any surviving child. Exceptions exist if the child is mentally or physically challenged or has a life-threatening illness.

Secondary Infertility Explained

Secondary infertility occurs when a couple cannot conceive or carry a pregnancy after having a child naturally. Causes include Polycystic Ovary Syndrome, endometriosis, and lifestyle factors. The petitioners argue that the law’s definition of infertility should include secondary infertility, allowing them access to surrogacy for a second child.

Legal and Ethical Issues

The petition raises the question of whether reproductive choices are a fundamental right. The government maintains that surrogacy involves another woman’s body and cannot be an unrestricted right. The Court has called the law’s restriction reasonable but is examining if it unjustly limits reproductive freedom.

Regulatory Intent and Challenges

The law’s primary goal is to prevent commercial surrogacy and exploitation of vulnerable women. It also seeks to regulate fertility clinics alongside the Assisted Reproductive Technology (ART) Act. Critics argue that restricting surrogacy based on the number of children splits hairs and may deny genuine medical need.

Current Legal Landscape

No Indian law limits the number of children a person can have. Some states incentivise a two-child norm through benefits and political eligibility. The Supreme Court recently relaxed age limits for surrogacy in cases involving frozen embryos created before the Act’s enactment.

Future Implications

A broader interpretation of surrogacy laws could assist couples with infertility while still preventing commercial surrogacy. Balancing rights of intending parents and surrogate mothers remains a delicate policy challenge. The Court’s decision will set important legal precedents on reproductive rights and surrogacy regulation.

Questions for UPSC:

1. Critically discuss the ethical and legal challenges in regulating surrogacy in India under the Surrogacy (Regulation) Act, 2021.
2. Examine the implications of recognising reproductive rights as fundamental rights in the context of assisted reproductive technologies in India.
3. Analyse the role of the Supreme Court in balancing individual rights and state regulation in health-related laws. Point out the challenges posed by emerging reproductive technologies.
4. Estimate the impact of state-level two-child norms on social policy and population control measures in India. How do these norms interact with national laws on reproductive rights?

Answer Hints:

1. Critically discuss the ethical and legal challenges in regulating surrogacy in India under the Surrogacy (Regulation) Act, 2021.

1. Surrogacy Act bans commercial surrogacy to prevent exploitation of vulnerable women.
2. Allows only altruistic surrogacy and restricts eligibility to childless couples or exceptions (mentally/physically challenged child).
3. Ethical concerns include bodily autonomy of surrogate mothers and commodification of reproduction.
4. Legal challenges arise in defining infertility, especially secondary infertility, and access to surrogacy for second child.
5. Balancing protection of surrogate mothers with rights of intending parents is complex.
6. Regulation of fertility clinics and prevention of misuse remain ongoing enforcement challenges.

2. Examine the implications of recognising reproductive rights as fundamental rights in the context of assisted reproductive technologies in India.

1. Recognition would affirm individual autonomy over reproductive choices, including use of ART and surrogacy.
2. Could challenge existing restrictions such as surrogacy only for childless couples, expanding access.
3. Raises issues of privacy, bodily integrity, and non-discrimination under constitutional law.
4. May conflict with state interests in regulating exploitation and protecting surrogate mothers.
5. Would require robust legal frameworks to balance rights of all parties involved (intending parents, surrogate, child).
6. Could set precedent for broader reproductive healthcare rights and technology use in India.

3. Analyse the role of the Supreme Court in balancing individual rights and state regulation in health-related laws. Point out the challenges posed by emerging reproductive technologies.

1. Supreme Court acts as interpreter of constitutional rights vis-à-vis legislative restrictions.
2. Ensures state regulations do not unjustifiably infringe on personal liberties like reproductive choices.
3. Challenges include evolving technology outpacing existing laws (e.g., ART, surrogacy, embryo freezing).
4. Need to protect vulnerable groups (surrogates) while enabling access to medical advancements.
5. Court must weigh ethical, social, and medical dimensions in judgments.
6. Precedents set by Court guide future policy and lawmaking in health and reproductive sectors.

4. Estimate the impact of state-level two-child norms on social policy and population control measures in India. How do these norms interact with national laws on reproductive rights?

1. Two-child norms incentivize smaller families via benefits, jobs, and political eligibility at state level.
2. These norms influence population control efforts but lack uniform national statutory backing.
3. They coexist with national laws that do not restrict number of children or reproductive rights explicitly.
4. Potential conflict arises where state incentives indirectly pressure reproductive choices.
5. May disproportionately affect marginalized groups and raise ethical concerns on autonomy.
6. Interaction marks tension between population policy goals and constitutional rights to privacy and reproduction.