Archive · 6 Nov 2025
Supreme Court Reviews Surrogacy Law's Ban on Second Child for Infertile Couples
Imagine a couple already has one child, but they have trouble having another baby naturally.
There's a law in India that says if you already have a child, you can't use a 'surrogate mother' to have a second one, even if you can't conceive easily.
Some people are taking this law to the Supreme Court.
They say the government shouldn't tell people how many children they can have or how they can have them.
They believe it's a personal choice.
The government, however, says this rule is important.
They want to make sure surrogate mothers are treated well and that having babies through surrogacy isn't just for convenience.
They also mentioned that India's large population is a factor.
The court is now looking at both sides to decide if the law is fair.
The Supreme Court is reviewing a ban in the Surrogacy (Regulation) Act, 2021, on couples with secondary infertility using surrogacy for a second child.
The law prohibits couples from using surrogacy if they already have a surviving child, regardless of how that child was conceived or obtained.
Petitioners argue the ban violates fundamental rights to reproductive choice and personal liberty, and that the state cannot limit family size.
The government defends the law, stating surrogacy is a statutory right and the ban prevents exploitation and commercialization, considering population concerns.
An exception exists if the couple's surviving child has a certified medical condition like a disability or life-threatening disorder.
- Who
- The Supreme Court of India and petitioners challenging the Surrogacy (Regulation) Act, 2021.
- What
- Reviewing a law that prohibits married couples with secondary infertility from using surrogacy for a second child.
- When
- Recently (implied by article context)
- Where
- India
- Why
- To determine if the ban infringes upon the fundamental right to reproductive choice and personal liberty.
Arguments for Challenging the Ban
Arguments for the Law's Restrictions
Reproductive Autonomy vs. State Regulation
Arguments for Challenging the Ban
The ban infringes upon citizens' fundamental right to reproductive choice and personal liberty, and the state cannot impose an artificial cap on family size as India does not have a one-child policy.
Arguments for the Law's Restrictions
The restriction is considered reasonable given concerns about India's growing population. The government argues that surrogacy is a statutory, not fundamental, right, and the law aims to prevent exploitation and commercialization, ensuring it's a last resort.
Definition and Application of Infertility
Arguments for Challenging the Ban
The law is discriminatory as it doesn't allow couples with secondary infertility to use surrogacy for a second child, even though other laws permit a second child through adoption. Secondary infertility is an emotionally challenging and medically recognized condition.
Arguments for the Law's Restrictions
The law prioritizes preventing exploitation of surrogate mothers and commercialization of surrogacy, positioning it as a measure for those who genuinely cannot conceive by any other means.
- Court
- Supreme Court of India
- Law in Question
- Surrogacy (Regulation) Act, 2021, Section 4(iii)(C)(II)
- Issue
- Ban on married couples with secondary infertility from using surrogacy for a second child.
- Petitioners' Argument
- Ban violates reproductive choice, personal liberty, and imposes an artificial family size cap.
- Government's Argument
- Surrogacy is a statutory right, not fundamental; law prevents exploitation and commercialization.
- Exception to Ban
- Allowed if the surviving child has a certified medical condition (mental/physical challenge or life-threatening disorder).
