Is the government overstepping its boundaries by dictating when and how couples can use surrogacy to expand their families? That's the core question the Supreme Court is now grappling with, and the implications could be huge for reproductive rights. On November 4, 2025, the court began examining a law that prohibits married couples dealing with secondary infertility from using surrogacy to have a second child. But here's where it gets controversial: does this restriction infringe upon citizens' fundamental right to make decisions about their own bodies and families?
The case centers around Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021. The government defends this law, arguing that surrogacy isn't a fundamental right. They claim it involves using another woman's body (the surrogate mother) and should only be considered after all other options for parenthood have been exhausted, including natural conception and assisted reproductive technologies (ART). The government's stance is that the Constitution doesn't recognize a right to use another person's body, and therefore, surrogacy exists as a statutory right, subject to conditions.
Advocate Mohini Priya, representing a couple affected by this law, argues the state shouldn't interfere with private lives and reproductive choices. She highlighted the emotional toll of secondary infertility, a condition where couples struggle to conceive a second child after already having one or more children. This can be just as painful as primary infertility, which is the inability to conceive at all. Ms. Priya emphasized that the definition of 'infertility' in both the ART Act and the Surrogacy Act shouldn't be limited to primary infertility and urged the court to allow couples with secondary infertility to pursue surrogacy for a second child.
But the government counters with a key exception: the law allows surrogacy for a second child if the existing child has a mental or physical challenge, a life-threatening disorder, or a fatal illness with no cure. The government believes this provision strikes a balance, allowing surrogacy when there's a genuine need while preventing it when the couple already has a healthy child.
During the hearing, Justice B.V. Nagarathna described the restriction as "reasonable," even referencing the country's growing population. However, Ms. Priya pointed out that India doesn't have a "one-child policy" and that couples can certainly ensure the well-being of their first child while still pursuing surrogacy for a second. She also cited the Adoption Regulations, 2017, which allow for the adoption of up to three children, and Section 11 of the Hindu Adoption and Maintenance Act, which permits the adoption of a second child even when a couple already has a biological child.
What do you think? Does the government have the right to regulate surrogacy in this way? Is it a matter of protecting the surrogate mother, or an infringement on personal liberty? Share your thoughts in the comments – let's get a discussion going!
