Why in the News?
The Supreme Court is hearing challenges to Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, which restricts the use of surrogacy for couples who already have a living child, raising constitutional questions about reproductive choice.
Key Highlights
- Legal provision under challenge
- Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 restricts commercial and altruistic surrogacy for couples who already have a living child, except in limited circumstances.
- The provision aims to limit surrogacy to those who are infertile and do not already have a child, with a specified proviso for when the existing child has severe medical conditions.
- Petitioners’ grievance and legal plea
- A married couple facing secondary infertility has approached the Supreme Court, arguing that the law unjustifiably prohibits them from using surrogacy to have a second child.
- Counsel for the petitioners emphasised that secondary infertility causes severe emotional distress and that the statutory definition of infertility should include such cases. They urged the Court to read down the provision to permit surrogacy for secondary infertility.
- Centre’s position and rationale
- The Union government told the Court that there is no fundamental right to surrogacy; it is a regulated statutory right because surrogacy requires using another woman’s womb.
- The government argued that surrogacy should be allowed only after other options like natural conception and Assisted Reproductive Technologies (ART) are exhausted.
- Proviso and limited exceptions in the Act
- The Act contains a proviso allowing surrogacy if the existing child is mentally or physically challenged or suffers from a life-threatening disorder without permanent cure, irrespective of whether the child is biological, adopted, or born through surrogacy.
- The government contends this is a reasoned exception to address grave needs without broadly expanding eligibility.
- Court’s preliminary observations and broader issues flagged
- Justice V. Nagarathna noted the restriction appears reasonable in principle and referenced concerns about population and ethical implications.
- Petitioners countered that India lacks a one-child policy and that reproductive autonomy must be respected.
- The Court will weigh constitutional rights, statutory aims, surrogate welfare, and public policy in deciding whether the provision is constitutionally sustainable.
Surrogacy (Regulation) Act, 20211. Objective and Purpose a. To regulate surrogacy practices in India and prevent commercial exploitation of women. b. To promote ethical, altruistic surrogacy while protecting the rights of surrogate mothers and children. c. To establish uniform standards for clinics and ART institutions. 2. Key Definitions a. Surrogacy: Practice where a woman gives birth to a child for an intending couple and agrees to hand over the child after birth. b. Altruistic surrogacy: No monetary compensation except for medical expenses and insurance. c. Commercial surrogacy: Any surrogacy involving payment, reward, or benefit—prohibited by the Act. d. Intending couple: Married Indian man and woman seeking surrogacy due to proven infertility. 3. Eligibility Criteria a. For Intending Couple i. Must be Indian citizens. ii. Married for at least 5 years. iii. Husband’s age: 26–55 years; Wife’s age: 23–50 years. iv. Must be medically certified as infertile. v. Should not have a living child, whether biological, adopted, or through surrogacy (exceptions exist). b. For Surrogate Mother i. Must be a married woman having her own child. ii. Age: 25–35 years. iii. Can act as a surrogate only once in her lifetime. iv. Must undergo medical and psychological screening. v. Must have written consent and insurance coverage for 16 months post-delivery. 4. Permitted Circumstances for Surrogacy a. Only altruistic surrogacy allowed. b. Only for infertile Indian married couples (not for foreigners, NRIs, or same-sex couples). c. Exceptions: If the existing child is mentally/physically challenged, suffers from life-threatening disease, or has no permanent cure. 5. Prohibitions a. Commercial surrogacy and sale or trafficking of children. b. Advertising or promoting commercial surrogacy. c. Surrogacy for foreigners, NRIs, or live-in couples. d. Selection of sex of the child is strictly prohibited (linked to PCPNDT Act). 6. Institutional Framework a. National Surrogacy Board (NSB): i. Policy formulation, coordination, and monitoring. ii. Advises Central Government. iii. Oversees implementation of the Act. b. State Surrogacy Boards (SSB): i. Supervise local surrogacy clinics. ii. Ensure ethical compliance and grievance redressal. 7. Rights and Safeguards a. Surrogate mother’s consent is mandatory; she can withdraw before embryo implantation. b. The child born through surrogacy is legally the biological child of the intending couple. c. Surrogate mother entitled to insurance and medical support. d. Clinics must maintain confidentiality of records. 8. Penalties a. Commercial surrogacy or exploitation: 10 years imprisonment and/or ₹10 lakh fine. b. Abandonment or sale of child: Punishable offence. c. Unregistered clinics: 3 years imprisonment and fine. d. Sex selection or advertisement: Punishable under both Surrogacy (Regulation) Act, 2021 and PCPNDT Act. |
Key Terms
- Secondary Infertility
- The inability to conceive or carry a pregnancy after having previously given birth to one or more children.
- It poses distinct medical, emotional and social challenges, and raises policy questions on whether infertility definitions should include secondary infertility for surrogacy eligibility.
- Reproductive Autonomy
- A subset of personal liberty encompassing the right to make decisions about procreation, family size, and reproductive technologies.
- Its constitutional contours include privacy, dignity and bodily autonomy; courts assess restrictions through proportionality and reasonable classification lenses.
- Assisted Reproductive Technologies (ART)
- Medical procedures such as IVF, IUI, embryo transfer used to achieve pregnancy. ART clinics and procedures are regulated by separate guidelines and proposed legislation (ART regulation).
Implications
- Reproductive rights jurisprudence: The judgment will clarify whether access to surrogacy is part of the constitutional right to reproductive autonomy/privacy or a regulated privilege subject to legislative limits.
- Balance between autonomy and surrogate welfare: The Court’s view will affect how the law balances intending parents’ choices with the dignity, bodily autonomy and protection of surrogate mothers.
- Health and ART regulation linkage: A decision may influence the interaction between the ART (Assisted Reproductive Technology) regulatory framework and surrogacy rules regarding eligibility and sequencing of treatments.
- Social equity and access: If restrictions are relaxed, questions of affordability, access, and exploitation arise; conversely, upholding restrictions could leave some infertile couples without remedy.
- Policy signals for demographic and ethical concerns: The ruling will shape policy on whether reproductive interventions are to be encouraged, limited, or tightly regulated in light of ethical, demographic and welfare considerations.
Challenges and Way Forward
| Challenges | Way Forward |
| Constitutional tension: Reconciling reproductive autonomy with the State’s power to regulate medical practices involving another person’s body. | The Court should adopt a rights-sensitive, principle-based test (proportionality/least restrictive means) to balance autonomy and surrogate protection. |
| Definition and proof of infertility: Ambiguities about primary v/s secondary infertility and medical thresholds. | Create clear medical guidelines (by ART/medical regulators) defining infertility categories and required evidence before surrogacy eligibility is decided. |
| Surrogate welfare and exploitation risk: Commercial pressures may exploit surrogates if demand expands. | Strengthen welfare safeguards: mandatory counselling, informed consent, minimum compensation safeguards, health insurance, and post-partum support for surrogates. |
| Coordination with ART rules: Potential overlap or conflict between ART regulations and surrogacy law. | Harmonise the Surrogacy Act with ART regulations via inter-ministerial rules and a unified registry for clinics, surrogates and intending parents. |
| Social and demographic concerns: Fear of encouraging large family norms or inequitable access. | Craft eligibility criteria that are medically justified, transparent, and non-discriminatory; couple with social policies (e.g., counselling on family welfare). |
Conclusion
The Supreme Court’s examination of the surrogacy restriction tests the limits of statutory regulation over deeply personal reproductive choices. The issue requires a nuanced judgment that protects surrogate mothers from exploitation, recognises the emotional reality of secondary infertility, and adheres to constitutional guarantees of autonomy and dignity while respecting legitimate legislative objectives.
| EnsureIAS Mains Question Q. Analyse whether restrictions on access to surrogacy (as enacted in the Surrogacy Regulation Act, 2021) violate the constitutional right to reproductive autonomy. How should the law balance the interests of intending parents, surrogate mothers and public policy? (250 Words) |
| EnsureIAS Prelims Question Q. Consider the following statements: 1. The Surrogacy (Regulation) Act, 2021 makes surrogacy an absolute fundamental right for all infertile couples. 2. The Act permits surrogacy for a couple who already has a living child only if that child is suffering from a life-threatening or debilitating condition. 3. Assisted Reproductive Technologies (ART) must be exhausted before a couple can legally opt for surrogacy under the Act, according to the Centre’s submissions. How many of the following statements are correct? Answer: b) 2 and 3 only Explanation: Statement 2 is correct: The Act contains a proviso allowing surrogacy where the existing child is mentally/physically challenged or faces a life-threatening disorder without permanent cure. This is an exception to the general prohibition for couples who already have a living child. Statement 3 is correct: The Union submitted that surrogacy should be a last resort, available only after natural conception and other ART avenues have been tried and exhausted, reflecting a sequencing preference endorsed by the government. |
Also Read | |
| UPSC Foundation Course | UPSC Daily Current Affairs |
| UPSC Monthly Magazine | CSAT Foundation Course |
| Free MCQs for UPSC Prelims | UPSC Test Series |
| Best IAS Coaching in Delhi | Our Booklist |
