Supreme Court seeks Centre’s reply over bar on surrogacy

A bench of justices BV Nagarathna and Augustine George Masih noted that a matter related to the Surrogacy Act is already pending in the top court.

The Supreme Court on Friday sought the response of the Centre on a petition challenging the bar under the Surrogacy Act that prevents married couples who already have a child from having a second child through surrogacy.

Issuing notice on a petition filed by a married couple, a bench of justices BV Nagarathna and Augustine George Masih noted that a matter related to the Surrogacy Act is already pending in the top court in a petition filed by IVF specialist Arun Muthuvel in which the amendments to the law barring single unmarried woman and homosexual couples are under challenge. The bench directed the matter to be heard on May 3.

Advocate Mohini Priya, who filed the latest petition, told the court that it challenges the constitutional validity of Section 4(iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021, which makes an intending couple ineligible to avail of surrogacy if they have any healthy surviving child biologically or through adoption or surrogacy, thus excluding married couples suffering from secondary infertility.

“The choice of reproduction has been held to be a part of the right to life under Article 21 by the Supreme Court, and the said choices also fall within the right to privacy and that the Act severely regulates these rights, so much so, that the fundamental rights under Articles 14 and 21 stand defeated,” the petition said.

The petitioners are a married Indian couple and have one healthy biological child. However due to subsequent health issues faced by the Petitioner wife she underwent several miscarriages. It was then that the couple decided to opt for surrogacy but faced the legal bar in having a second child.

“Limiting the number of children a couple can have through surrogacy imposes a restriction on their personal autonomy and family planning choices. Moreover, allowing married couples to have a second child through surrogacy can contribute to family formation and support those who are unable to conceive or carry a child themselves. This can have several positive social and familial Implications,” the petition said.

This amounts to interference by state in the private lives of citizens, Mohini argued, pointing out how the law failed to acknowledge secondary infertility.

According to National Family Health Survey (NFHS) data, the petitioner pointed out, the trend of primary infertility depicts a gradual decrease over time. However, it is the opposite with secondary infertility. It was around 19.5% in 1992-93, remained almost the same in 1998-99, and increased in the recent decadal period of 2015-16 touching 28.6%.

Terming the bar on surrogacy against married couples having a child as “irrational, discriminatory and without any sound determining principles”, besides being in violation of the reproductive rights of a woman under Article 21, the petition said that India promotes two-child policy as an accepted familial norm.

“Having two children helps inculcate values of sharing and caring and strengthens family bonds. It is in the best interests of the surviving child to have a genetically linked sibling. A biological sibling could be a match for bone marrow, tissue or organs in the event that a need for any of it arises,” the petition said.