Why in News ?
- Supreme Court (Nov 2025) decided to review the constitutionality of Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, which bans married couples with one living child from availing surrogacy, even if they suffer from secondary infertility.
- The Centre defended the ban, asserting no fundamental right to surrogacy, while petitioners argued it violates reproductive autonomy and right to privacy.
Relevance :
GS Paper II (Polity & Governance):
- Judicial review of legislation — Surrogacy (Regulation) Act, 2021.
- Reproductive rights under Article 21 (Right to Privacy, Autonomy).
- Role of Supreme Court in balancing ethics and personal liberty.
- Gender justice and family policy frameworks.
GS Paper I (Society):
- Changing family structures and reproductive health rights.
- Ethical and social implications of assisted reproduction.
Surrogacy Regulation Framework in India
- Surrogacy (Regulation) Act, 2021:
- Regulates and restricts surrogacy to altruistic (non-commercial) arrangements only.
- Commercial surrogacy banned to prevent exploitation of poor women.
- Allows surrogacy only for Indian married couples (5+ years marriage), with proven infertility.
- Eligibility clause [Section 4(iii)(C)(II)]: A couple must not have any surviving child (biological, adopted, or through surrogacy).
Exception: If existing child is mentally/physically challenged or has a life-threatening disorder.
- ART (Assisted Reproductive Technology) Act, 2021 complements this by regulating fertility clinics and ART procedures (IVF, etc.).
What is Secondary Infertility?
- Inability to conceive after having at least one biological child.
- Globally affects ~10–15% of couples (WHO).
- In India, often under-recognised and socially stigmatized; medically and emotionally distressing.
Centre’s Stand
- No fundamental right to surrogacy under the Constitution.
- Surrogacy involves use of another woman’s body, hence cannot be demanded as a personal right.
- Supported by Article 21 interpretation limits (right to life/personal liberty ≠ right over another’s body).
- Surrogacy should be last resort, only after failure of all other natural and ART options.
- The law’s restriction is reasonable, aimed at:
- Preventing misuse and commercialization.
- Protecting surrogate mothers from exploitation.
- Avoiding repeated pregnancies for non-essential reasons.
Petitioners’ Arguments
- Violation of reproductive autonomy (Article 21) — right to make reproductive choices is part of personal liberty (K.S. Puttaswamy v. Union of India, 2017).
- Discriminatory restriction:
- India has no one-child policy, so the law creates an artificial cap on family size.
- Couples facing secondary infertility are denied reproductive justice.
- Emotional & social toll of infertility not considered — secondary infertility is as distressing as primary infertility.
- Requested Court to read down Section 4(iii)(C)(II) to allow such couples to avail surrogacy.
Supreme Court’s Observations (Nov 2025 Hearing)
- Bench: Justice B.V. Nagarathna (noted for gender-rights jurisprudence).
- Court to examine whether the restriction violates reproductive choice and privacy of citizens.
- Justice Nagarathna observed:
- India’s demographic profile shows no need for a one-child-like restriction.
- Provision seems reasonable, but requires nuanced scrutiny balancing autonomy vs ethical regulation.
Constitutional Dimensions
| Issue | Provision / Case Law | Implication |
| Reproductive Choice | Article 21 (Right to Life & Personal Liberty) | Includes right to procreate (Puttaswamy, Suchita Srivastava v. Chandigarh Admin, 2009). |
| Equality | Article 14 | Blanket ban may violate equality and non-arbitrariness. |
| Privacy & Autonomy | Puttaswamy Judgment (2017) | Protects decisional autonomy, including family planning choices. |
| State’s Regulatory Power | Reasonable restrictions permissible | To prevent exploitation of women and commodification of surrogacy. |
Social and Ethical Dimensions
- Concerns addressed by ban:
- Exploitation of poor surrogate mothers.
- Health risks from repeated surrogacies.
- Commercialisation of motherhood.
- Criticisms of ban:
- Denies medical solutions to genuine infertility cases.
- Ignores emotional distress and family aspirations.
- Overregulation may drive cross-border surrogacy or illegal arrangements.
Global Comparison
| Country | Policy |
| UK | Only altruistic surrogacy permitted; regulated. |
| USA | Varies by state; many allow compensated surrogacy. |
| Russia | Allows commercial surrogacy; liberal framework. |
| China | Complete ban on surrogacy. |
| India | Altruistic only, with strict eligibility — among the most restrictive globally. |
Policy Implications
- Need for graded, empathetic regulation distinguishing between misuse and genuine cases.
- Review to incorporate medical definitions of infertility (primary vs secondary).
- Expand framework to include single parents, widows/divorcees, as suggested by earlier petitions.
- Potential alignment with reproductive rights jurisprudence under Article 21.
Way Forward
- Judicial clarity on scope of reproductive autonomy under surrogacy laws.
- Legislative reconsideration of Section 4(iii)(C)(II) to include medically certified secondary infertility.
- Ethical safeguards for surrogate mothers — health insurance, counselling, consent protocols.
- Public awareness to destigmatize infertility.
