Surrogacy law calls for nuanced application

The Supreme Court’s recent observations on a petition seeking permission to use surrogacy for a second child place law in the context of rights to reproductive choices. The Surrogacy (Regulation) Act, 2021, disallows married couples facing secondary infertility from using surrogacy to have a second child. Exceptions are made only if the first-born child is mentally or physically challenged or has a life-threatening disorder. Secondary infertility is the inability to conceive children after having one or more children; it can be caused by biological or other reasons. The issue before the apex court is whether the restriction in law amounts to a violation by the State of the fundamental right to reproductive choice and personal liberty of citizens. It was contended before the Court that the right flows from the right to life guaranteed under Article 21. What has been challenged is a section of the law that debars couples from availing surrogacy if they have a surviving child, regardless of whether that child was born biologically, through a previous surrogacy procedure, or adopted.

The petitioner contended that the definition of infertility in the Surrogacy Act and the Assisted Reproductive Technology (Regulation) Act, 2021, was not restricted to primary infertility. It was noted that secondary infertility is a medically recognised condition and the State cannot impose a cap on the size of a family, especially since India does not have a “one-child policy”. Existing laws, the petitioner pointed out, allow a couple with a biological child to adopt a second one, making the restriction on surrogacy discriminatory. The government argued that surrogacy cannot be deemed a fundamental right, and that the process involves the use of another woman’s body.

During the hearing, the judge orally remarked that the restriction imposed under the provision was “reasonable” in view of the rising population, but it also acknowledged the need for nuanced scrutiny that balances personal autonomy with ethical regulation. The restriction of surrogacy terms to one child appears unreasonable and the argument based on population has no legal merit. If the intention is to prevent commercialisation of surrogacy and exploitation of vulnerable women, the restriction does not address these concerns. Rules can be strengthened to prevent such exploitation. The Court recently allowed couples with frozen embryos to proceed with surrogacy even if they are past the stipulated age limit. It has done well in agreeing to examine the larger topic, which is as much a human issue as one of citizen’s rights.