Supreme Court Seeks Response on Surrogacy Law Restricting Second Child

The Supreme Court has taken cognizance of a plea challenging the Surrogacy Act's provision barring married couples from having a second child through surrogacy if they already have a healthy first child. A Bench of Justices BV Nagarathna and Augustine George Masih issued notice to the Central government after hearing advocate Mohini Priya, who represented the petitioners.

The petitioners argue that married couples have the right to exercise their reproductive choice of availing surrogacy to conceive a second child. They contend that such a restriction amounts to unnecessary state interference in the private lives of citizens and lacks a rational basis.

"Having two children helps inculcate values of sharing and caring and strengthens family bonds. Furthermore, it is in the best interests of the surviving child to have a genetically linked sibling," the plea states.

The petitioners seek the Court's intervention to at least modify the challenged restriction in Section 4 of the Surrogacy Act, allowing couples to have a second child through surrogacy. This plea comes amidst a batch of public interest litigation (PIL) petitions challenging the ban on commercial surrogacy, which are already pending before the Supreme Court.

In October last year, the Supreme Court noted concerns regarding a complete ban on using donor gametes in gestational surrogacies, finding it potentially against the Rules framed under the Surrogacy and Assisted Reproductive Technology Acts. Additionally, the Court is considering two petitions challenging the constitutionality of Section 2(1)(s) of the Surrogacy Act, which excludes unmarried women from becoming surrogate mothers.

The plea challenging the restriction on second-child surrogacy seeks to address concerns of couples facing secondary infertility, advocating for their right to expand their families through assisted reproductive technologies. With the Supreme Court seeking a response from the Central government, the outcome of this case could significantly impact the future of surrogacy laws in India.

Author: Anushka Taraniya 

News writer, MIT ADT University