Supreme Court to examine if couples can be allowed 2nd child via surrogacy

Tribune News Service

Satya Prakash

New Delhi, April 19

Can married couples be allowed to have a second child via surrogacy even though they have a healthy first child? Faced with this question, the Supreme Court on Friday issued notice to the Centre on a petition challenging a law debarring married couples from having a second child through surrogacy if they have a healthy first child.

What the law says

• Couples seeking a child via surrogacy must secure an eligibility certificate
• Must mention they don’t have any child, biologically via adoption or surrogacy
• Couple should be married with females aged 23-50 and males 26-55

Petitioners contend

• Couple unable to conceive 2nd time prevented from right to reproductive choice
• Having 2 kids helps inculcate values of sharing & caring; strengthens family bond
• In best interests of the surviving child to have a genetically linked sibling

A Bench led by Justice BV Nagarathna asked the Centre to respond to a provision of the Surrogacy Act which excluded couples unable to conceive a child after previously giving birth via surrogacy.

Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021 requires couples willing to have a child through surrogacy to secure an eligibility certificate to the effect that they do not have any surviving child—biologically, through adoption or surrogacy. The ‘intending couple’ should be married between 23 and 50 years in case of females, and between 26 and 55 years in case of male on the day they are issued an eligibility certificate.

Challenging the restriction under 4 (iii)(C)(ii) of the Act, the petitioners contended that the impugned provision was “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”.

The petitioners—a married couple unable to conceive the second time—submitted that they had been prevented from exercising their right to reproductive choice. They have urged the top court to strike down Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021, or at least read down the relevant provisions to allow them to exercise their right to reproductive choice.

“Having two children helps inculcate values of sharing and caring and strengthens family bonds. Furthermore, 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 those arises,” they submitted.

The court was seized of PILs challenging the validity of the Surrogacy (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), and the Rules framed thereunder. Two pleas challenging validity of Section 2(1) (s) of Surrogacy Act, which excluded unmarried women from being surrogate mothers, were also pending.

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