Supreme Court to investigate whether surrogacy allows couples to have a second child

Can a married couple who already have a healthy first child be permitted to use surrogacy to have a second child? In response to this query, the Supreme Court on Friday sent notice to the Center on a petition contesting a statute that prevents married couples with a healthy first child from using surrogacy to produce a second child.

A Surrogacy Act clause that barred couples who were unable to conceive after having previously given birth via surrogacy was the subject of a bench headed by Justice BV Nagarathna’s request for the Center’s response.

Under the Surrogacy (Regulation) Act, 2021, couples who want to become surrogate parents must get an eligibility certificate stating that they are childless, either biologically or via adoption or surrogacy. When the “intending couple” receives their eligibility certificate, they should be married between the ages of 26 and 55 for men and between 23 and 50 for women on that day.

The petitioners argued 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,” challenging the restriction under 4 (iii)(C)(ii) of the Act.

The petitioners, a married couple who were unsuccessful in becoming pregnant again, claimed they had been denied the opportunity to exercise their freedom to choose their method of conception. In order to enable them to exercise their right to reproductive choice, they have petitioned the supreme court to overturn Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021, or at the at least, read down the relevant sections.

“Having two kids enhances family ties and fosters the qualities of sharing and caring. Moreover, having a genetically related sibling is beneficial for the surviving kid. In the event that bone marrow, tissue, or organs are needed, a biological sibling may be a match for any of those, they said.

PILs contesting the legality of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), the Surrogacy (Regulation) Act, 2021, and the Rules established under it were brought before the court. There were also two appeals ongoing that challenged the legality of Surrogacy Act Section 2(1)(s), which barred single women from serving as surrogate mothers.