Context:
• Supreme Court to examine whether Section 4(iii)(C)(II) of Surrogacy (Regulation) Act, 2021 — which bars a married couple with one existing child from availing surrogacy — violates reproductive autonomy.
• PIL filed by couple facing secondary infertility → argues State cannot intrude into reproductive choices.
Key Highlights:
Government Position / Constitutional Stand
• Centre → Surrogacy is not a fundamental right.
• “Right to surrogacy ≠ Right over another individual’s body” → surrogate mother’s womb cannot be treated as an entitlement.
• Surrogacy permitted only after natural birth / ART options exhausted.
• Surrogacy Act right is statutory → not unconditional.
Petitioner Argument
• Secondary infertility = medically & emotionally taxing → not “less serious” than primary infertility.
• Surrogacy ban for second child = arbitrary restriction on reproductive autonomy.
• No “One-child policy” in India.
• Adoption Regulations, 2017 → allow up to 3 children to be adopted — hence surrogacy restriction unreasonable.
Balancing Provision
• Exception available if existing child is:
– mentally / physically challenged, OR
– life-threatening disorder / fatal illness with no permanent cure.
• Govt: Reasonable safeguard to prevent over-use of surrogacy when a couple already has a healthy child.
Relevant Prelims Points:
• Surrogacy (Regulation) Act, 2021 → allows only altruistic surrogacy; commercial surrogacy banned.
• ART Act, 2021 works together with Surrogacy Act → regulates clinics, gamete donation.
• Surrogacy = NOT a fundamental right → only statutory entitlement subject to conditions.
• Article relevance: Art 21 – reproductive autonomy; privacy (KS Puttaswamy).
Relevant Mains Points:
• Key tension → bodily autonomy of surrogate mother vs reproductive autonomy of intending couple.
• Ethical concerns: exploitation, compensation ethics, commodification of womb, informed consent.
• State has duty to regulate non-commercial but high-risk medical interventions.
Way Forward:
• Review medical definition of “infertility” for primary vs secondary parity neutrality.
• Case-specific medical board certification route possible to reduce blanket prohibitions.