The Supreme Court’s recent observations about the legality of going in for surrogacy for the second child has raised the fundamental issue of what a law is meant to regulate.

Need for Regulation Of Surrogacy In India

• Rise of Surrogacy Industry in India: Post-2000, India became a global destination due to affordable In Vitro Fertilization (IVF) technology and advanced medical infrastructure.
• Regulatory Vacuum: Absence of strict laws allowed surrogacy clinics and agents to operate without accountability.
• Exploitation of Poor Women: Women were recruited primarily for monetary compensation and kept in controlled residential facilities.
• Health and Dignity Compromise: Emotional, physical, and health rights of surrogates were not prioritized by commissioning parents or clinics.
• Baby Manji Yamada Case (2008): A Japanese couple divorced before their child’s birth, leaving the baby without legal parenthood or citizenship, prompting Supreme Court intervention and underscoring the urgent need for clear legal regulation.

The 2021 Legislative Response

• Assisted Reproductive Technology (Regulation) Act, 2021: Regulates IVF clinics, ART banks, egg/sperm donors, and medical procedures.
• Surrogacy Regulation Act, 2021: The Surrogacy (Regulation) Act, 2021, aims to regulate the surrogacy industry in India to prevent exploitation and ensure ethical practices.
• Ban on Commercial Surrogacy: The Act prohibits commercial surrogacy and requires altruistic surrogacy to be free from monetary compensation to the surrogate mother.

Current Issue Before the Supreme Court

• Case: A couple facing secondary infertility approached the Supreme Court seeking permission for a second child through surrogacy, arguing that reproductive choices are part of an individual’s right to privacy and personal liberty under the Constitution.
• Legal barrier under the Surrogacy Act, 2021: Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 allows surrogacy only for couples without a surviving child, except when the existing child is disabled or suffers from a life-threatening illness.

Petitioners’ Arguments

• Definition of Infertility: The couple argued that the Assisted Reproductive Technology (ART) Act and the Surrogacy (Regulation) Act define infertility broadly, not restricting it to the first child; hence, excluding secondary infertility is arbitrary and medically insensitive.
• Reproductive Autonomy: The petitioners contended that reproductive choice is part of the fundamental right to privacy under Article 21, asserting that the state cannot decide how many children a couple may have or the method of conception.

Government’s Arguments

• Parenthood vs. Method: The Constitution guarantees the right to parenthood, but not the right to parent via surrogacy.
• Process-Based Regulation: Surrogacy, as a medical process, can be regulated by the State.
• Reasonable Restriction: The state maintained that limiting surrogacy only to couples without children is a reasonable classification, not violating equality principles.

Supreme Court’s Observations

• Restrictions Appear Reasonable: The Court noted that safeguarding vulnerable women from exploitation is a legitimate aim.
• Matter Under Examination: The Court will determine whether ruling out surrogacy for a second child violates reproductive autonomy.
• Recent dilution of rules: The Court earlier relaxed the age limit for surrogacy for couples with frozen embryos prior to the Act.

Check Out UPSC CSE Books

Visit PW Store

Larger Debate: What should the law regulate?

• Intent of the Law: Aims to curb commercial surrogacy and prevent the exploitation of economically vulnerable women, while regulating fertility clinics through the combined framework of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (ART) Act.
• Differentiation Between Primary and Secondary Infertility: Since India places no legal restriction on natural childbirth, limiting only technology-assisted reproduction appears inconsistent and discriminatory.

Conclusion

The law was enacted to prevent the commercialization and exploitation of wombs, not to limit reproductive choice or restrict family size. A balanced interpretation is needed to protect women while respecting personal reproductive freedom.

DOWNLOAD PDF