Supreme Court to examine validity of bar on married couples having second child via surrogacy

The Supreme Court on Friday sought the response of the Central government on a plea challenging the law barring married couples from having a second child through surrogacy if they have a healthy first child..A Bench of Justices BV Nagarathna and Augustine George Masih issued notice to the Central government after hearing advocate Mohini Priya, who appeared for the petitioners. .The Surrogacy Act excludes couples facing secondary infertility (inability to conceive or have a child after previously giving birth) from availing the benefits of surrogacy.In particular, Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021 requires couples who wish to have a child through surrogacy to secure an eligibility certificate clarifying that the couple does not have any surviving child (biologically or through adoption or surrogacy).This restriction has now been challenged before the Supreme Court. .The petitioners have highlighted that married couples have a right to exercise their reproductive choice of availing surrogacy to conceive a second child. The petitioners added that their plea seeks to stop unnecessary State interference in the private lives of citizens. The plea said Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021, should be struck down since it has no rational basis."Having two children help 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," the plea added. .The petitioners have, thus, urged the Court to at least read down the challenged restriction in Section 4 so that it is not interpreted to lay down any mandatory requirement. Effectively, they have sought directions to allow couples to have a second child through surrogacy..On a related note, a batch of public interest litigation (PIL) petitions challenging the ban on commercial surrogacy is already pending before the Supreme Court. In these PILs, the petitioners have challenged the validity of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as well the Rules framed under each Act.In October last year, the Supreme Court observed that a complete ban on using donor gametes (eggs or sperm) in gestational surrogacies appeared to be against these Rules.The top court is also seized of two petitions challenging the constitutionality of Section 2(1) (s) of the Surrogacy Act, which excludes unmarried women from becoming surrogate mothers..Supreme Court seeks Central government response on plea to allow surrogacy for unmarried women