Supreme Court Seeks Centre's Response On Plea Challenging Bar On Surrogacy For Second Child Of Couples Already Having A Healthy Child

The Supreme Court on Friday (April 19) sought the Union government's response on a plea filed to allow an intending couple, having a healthy biological child, to beget a second child through surrogacy if it so wants.

The bench of Justices BV Nagarathna and AG Masih passed the order upon hearing a petition under Article 32 of the Constitution, which challenged the constitutional validity of Section 4(iii)(c)(ii) of the Surrogacy (Regulation) Act, 2021 insofar as it prevents an intending married couple from having a second child through surrogacy if they have already had a healthy biological child normally, through adoption, or through surrogacy.

The petition is moved by a married couple who argued that unnecessary State interference in the private lives of citizens must be prevented.

The law in question

As per law, an eligibility certificate has to be issued to an intending couple before surrogacy takes place. Among the multiple conditions imposed for eligibility, one is that the intending couple should be married as well as between the age of 23-50 years in case of female and between 26-55 years in case of male on the day of certification.

Another condition - the condition under challenge - is that the intending couple should not have had any surviving child biologically or through adoption or through surrogacy earlier. This provision, however, creates an exception (through a proviso) in favor of intending couples whose first child is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure.

The petitioners' contentions

The petitioners claim that the impugned provision is "irrational, discriminatory and without any sound determining principles and in gross violation of the reproductive rights of a woman guaranteed under Article 21 of the Constitution".

They highlight that it excludes from its ambit the cases of married couples suffering from secondary infertility - "the most prevalent-form of infertility today". Secondary infertility is the inability to conceive or carry a pregnancy to term after successfully having one or more biological children in the past. Some common causes of the condition include age, hormonal imbalances, lifestyle factors or uterine conditions.

The petitioners further mention that after petitioner No.1-wife's first delivery, it has become life threatening to conceive a second child, leaving surrogacy as the last resort. It is also stated that the petitioners are otherwise eligible under the Act, barring the extent to which the impugned provision renders an intending couple with a healthy biological child ineligible to beget a second child through surrogacy.

It is further the petitioners' case that having a second biologically linked sibling would be in the best interests of their first biological child. "A biological sibling could be a match for bone marrow, tissue or organs in the event that a need for any of those arise", the plea states.

Insofar as the proviso to the impugned provision (creating exception), the petitioners urge that the distinction amounts to objectification of a child "and is based upon the presumption that such child does not bring the same amount of emotional fulfilment, to its parents as compared to a healthy child, thereby creating an exceptional case for parents to go for a second child through surrogacy."

Reliefs sought

In this backdrop, it is prayed that: (i) the impugned provision be read down (ii) the impugned provision be made directory (instead of mandatory), (iii) the petitioners be allowed to have a second child through surrogacy, and/or (iv) the operation of the impugned provisions be stayed qua petitioners.

Advocate Mohini Priya appeared for the petitioners.

Case Title: XYZ and Anr. v. Union of India, W.P.(C) No. 238/2024