Surrogacy for a Second Child: SC Review, Reproductive Rights & Policy Balance

Reference Article: Editorial | The Hindu – The second issue: On surrogacy for a second child

UPSC Relevance:
– GS Paper II: Rights Issues, Judiciary & Social Justice
– GS Paper III: Health, Biotechnology, Surrogacy Regulation
– GS Paper IV: Ethics — Autonomy vs Welfare, Bodily Rights

The Supreme Court has taken up a petition questioning the legality of denying surrogacy for a second child under the Surrogacy (Regulation) Act, 2021, reviving debate on reproductive autonomy, legislative intent, and the ethical use of technology in family planning. The petitioners suffer from secondary infertility and argue that the State cannot interfere in private reproductive choices.

What the Law Says

  • Surrogacy allowed only if a couple has no surviving child (biological, adopted or via surrogacy).
  • Exception only when existing child is mentally/physically challenged or has life-threatening disorder.
  • Government stance: Surrogacy is not a fundamental right; it involves another woman’s body and must be regulated.

Key Arguments Before the Court

Petitioners argue:

  • Secondary infertility should qualify for surrogacy.
  • Reproductive choice is a fundamental personal liberty under Article 21.
  • Law unfairly distinguishes between first-time and second-time infertile couples.

Centre argues:

  • Protection from exploitation of surrogate mothers is paramount.
  • Surrogacy is a regulated privilege, not a right.

The Court has called the restriction “reasonable”, yet decided to examine whether the law restricts reproductive choice.

Ethical & Policy Considerations

  • India aims to prevent commercial exploitation and regulate ART clinics.
  • The current restriction may over-regulate personal liberties when intention is safety, not population control.
  • No national law caps children; however, some States incentivise a two-child norm in select schemes.

Recent Judicial Trend

The Court recently allowed age relaxation for couples with frozen embryos, signalling openness to case-by-case relief where fairness demands flexibility.

Implications & Way Forward

Policy must balance:

  • Autonomy in reproductive choices
  • Protection of surrogate mothers
  • Ethical use of ART and surrogacy
  • Prevention of commercial exploitation

Possible regulatory path:

  • Permit second-child surrogacy on medical grounds (secondary infertility).
  • Maintain ban on commercial surrogacy, tighten monitoring.
  • Standardise medical certification and counselling safeguards.

A nuanced approach can uphold dignity and rights while safeguarding vulnerable women, aligning with constitutional morality and technological progress.

Conclusion

As India refines its surrogacy framework, it must ensure that regulation does not become restriction. A compassionate, balanced interpretation—ensuring ethical protection + reproductive autonomy—will best serve public interest and justice.

UPSC Practice Question

Q. The Surrogacy (Regulation) Act, 2021 aims to prevent exploitation but has sparked debate on reproductive autonomy. Critically examine whether restricting surrogacy for second-child infertility violates fundamental rights.