Sc to review surrogacy ban on couples with one child

Sc to review surrogacy ban on couples with one child

Centre says there is no basic right to surrogacy, which involves the use of another woman’s body; petitioner cites secondary fertility is emotionally taxing, notes India has no one-child policy.

The Supreme Court on Tuesday decided to examine whether a law banning married couples facing secondary infertility from using surrogacy to have a second child amounts to a state restriction on the reproductive choices of citizens.

The Union government has supported the constitutionality of the legal provision, Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, arguing that availing surrogacy cannot be claimed as a fundamental right. It has contended that surrogacy involves the use of the womb of another woman, the surrogate mother, and should be availed only after all other options to attain parenthood have failed, including natural birth and assisted reproductive technologies (ART).

“The Constitution does not recognise a right over another individual’s body. Thus, the right to avail surrogacy cannot be claimed as a fundamental right and exists purely as a statutory right subject to conditions/restrictions prescribed in the 2021 Act,” the government submitted in the top court.

‘Emotional toll’

Appearing before a Bench headed by Justice B.V. Nagarathna on Tuesday, advocate Mohini Priya, representing a couple facing secondary infertility and seeking to use surrogacy, argued that the state cannot interfere in the private lives and reproductive choices of citizens.

“Secondary infertility is a complex and emotionally challenging issue that many couples face when they struggle to conceive a second child after having successfully given birth to one or more children previously. This condition, often shrouded in stigma and misconceptions, can be just as distressing as primary infertility,” Ms. Priya submitted.

The lawyer submitted that the definition of “infertility” in the context of surrogacy both in the ART Act and the Surrogacy Act was not restricted to primary infertility. She urged the court to read down Section 4(iii)(C)(II) to allow couples with secondary infertility to have a second child through surrogacy.

Balancing interests

The government pointed to the proviso to the Section, which offers an exception for couples with a child who is mentally or physically challenged or suffers from a life-threatening disorder or a fatal illness with no permanent cure. This applies whether their existing child is biologically theirs, adopted, or through surrogacy.

“This is a well-considered provision which balances the interests of an intending couple who may have a genuine, grave need to have a second child through surrogacy, while ensuring that a surrogacy procedure is not availed and a surrogate mother does not undergo an entire pregnancy when the intending couple already has a healthy, living child,” the Centre said, backing the restriction.

‘No one-child policy’

Justice Nagarathna orally remarked in court that the restriction imposed under the provision was “reasonable”. The judge, on one occasion, referred to the burgeoning population of the country.

Ms. Priya noted that the country does not have a “one-child policy”, insisting that couples could ensure the best interests of their first child while availing of surrogacy for a second child. She referred to the Adoption Regulations, 2017 under the Juvenile Justice Act, 2015, which allow three children of any gender to be adopted.