Legal Interpretations and Challenges of Surrogacy in India

Supreme Court Observations

The Supreme Court is examining the legalities surrounding surrogacy for a second child, questioning the regulatory scope of the law.

Case Context

• A couple, facing secondary infertility, petitioned for surrogacy as the Surrogacy Act prohibits it for second children.
• Their advocate argued that reproductive choices are a private matter, and the state should not interfere.

Understanding Secondary Infertility

• Defined as the inability to conceive or carry a pregnancy to term after previously having a child.
• Causes include Polycystic Ovary Syndrome, endometriosis, and lifestyle factors.

Surrogacy (Regulation) Act, 2021

• Under Section 4(iii)(C)(II), eligibility for surrogacy requires no surviving child unless the child has specific challenges.
• The government argues surrogacy is not a fundamental right due to the involvement of another woman's body.

Judicial Considerations

• The Court is evaluating if banning surrogacy for secondary infertility limits reproductive choice.
• Recent rulings have relaxed age specifications for surrogacy for couples with frozen embryos.

Intent of the Law

• The law aims to prevent commercial surrogacy and exploitation, while regulating fertility centers.
• Debate on differentiating primary and secondary infertility seen as overly meticulous.

Current Norms and Interpretation

• No law limits the number of children in India, though a two-child policy is incentivized in some regions.
• An inclusive interpretation of the law could help parents while preventing commercial surrogacy.