The Hindu Editorial Analysis
7 November 2025
The second issue
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS 2: Issues relating to development and management of Social Sector/Services relating to Health
Context
A liberal reading of the surrogacy law would allow greater access for couples seeking medical assistance to conceive.
Introduction
The Supreme Court’s scrutiny of surrogacy for a second child has reignited debate on reproductive rights and the scope of State regulation. A couple with secondary infertility has challenged the Surrogacy (Regulation) Act, 2021, questioning whether restricting surrogacy to childless couples infringes on the constitutional right to privacy, personal liberty, and family autonomy.
Supreme Court on Second-Child Surrogacy: The Core Issue
- The Supreme Court’s recent observations on the legality of surrogacy for a second child have reignited debate over what laws are meant to regulate — morality, equality, or personal choice.
- The case involves a couple with secondary infertility who sought permission for surrogacy despite having a biological child.
Background of the Petition
- Secondary infertility refers to the inability to conceive or carry a pregnancy to term after having one or more biological children.
- Common causes include Polycystic Ovary Syndrome (PCOS), endometriosis, and lifestyle factors.
- The petitioners argued that ‘infertility’, as defined under the ART and Surrogacy Acts, should not be confined only to primary infertility.
- Their advocate emphasized that reproductive choices form part of the right to privacy, and the state cannot intrude upon citizens’ personal reproductive decisions.
Legal Provision Involved
- Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021) allows surrogacy only for couples without any surviving child — biological, adopted, or through surrogacy.
- Exceptions: permitted only if the existing child is mentally or physically challenged or suffers from a life-threatening disorder.
- The government’s stand: surrogacy cannot be treated as a fundamental right, as it involves using another woman’s body and hence must be tightly regulated.
Court’s Initial Observation
- The bench orally noted that such restrictions may be “reasonable” under the Act.
- However, the Court agreed to examine whether this bar on surrogacy for couples with secondary infertility violates the right to reproductive autonomy.
Policy Context and Legislative Intent
- The law’s primary goal, as stated during parliamentary debate, was to:
- Prevent commercial and exploitative surrogacy.
- Protect vulnerable women from coercion.
- Regulate fertility clinics alongside the ART (Assisted Reproductive Technology) Act.
- Recently, the Court also relaxed age restrictions for couples who had frozen embryos before the Act came into force — signaling a more flexible judicial interpretation.
Broader Ethical and Social Dimension
- India has no national law limiting the number of children per family.
- Some States promote a two-child norm through incentives or disqualifications in government jobs or elections — but none impose a legal bar.
- Differentiating between primary and secondary infertility, critics argue, amounts to “splitting hairs” when the law’s true purpose is preventing exploitation, not controlling family size.
Way Forward: Towards an Inclusive Approach
- A broader interpretation of the Surrogacy Act could:
- Uphold the reproductive rights and privacy of individuals.
- Allow equitable access to medical technology.
- Continue to safeguard women from commercial exploitation.
- Ultimately, a balance between autonomy and ethics must guide the evolving jurisprudence on reproductive rights in India.
Conclusion
As India balances ethical safeguards with technological advancements, the Court’s interpretation will shape the future of reproductive justice. A progressive reading of the law could uphold individual autonomy while preventing commercial exploitation. Ultimately, the challenge lies in ensuring compassionate regulation—where science serves society without curbing the freedom to parenthood for those facing genuine medical or emotional constraints.