Surrogacy Law in India - SC on Constitutionality of the second child restriction

What major surrogacy-law issue did the Supreme Court agree to examine on 4 November 2025?

The Supreme Court agreed to examine the constitutional validity of Section 4(ii)(C)(II) of the Surrogacy (Regulation) Act, 2021, which restricts couples who already have a living child from availing surrogacy, subject to an exception for a child with a disability, life-threatening condition or incurable illness.

Which provision of the Surrogacy (Regulation) Act, 2021 is at the centre of the constitutional challenge?

Section 4(ii)(C)(II), which generally prevents intending couples who already have a child from commissioning surrogacy, subject to the statutory exception.

On what date did the Supreme Court take up the challenge to the second-child surrogacy restriction?

4 November 2025.

Who headed the Supreme Court Bench hearing the second-child surrogacy challenge?

Justice B.V. Nagarathna headed the Bench hearing the challenge.

What was the petitioner's main constitutional objection to the second-child restriction?

The petitioner argued that the restriction violates reproductive autonomy, personal liberty and Article 21 by preventing couples with secondary infertility from having another child through surrogacy.

What is secondary infertility?

Secondary infertility refers to difficulty conceiving or carrying another pregnancy after a couple has previously conceived or successfully had a child.

Why did the petitioner argue that secondary infertility deserves legal protection?

The petitioner argued that it can be medically and emotionally distressing and may prevent couples from naturally conceiving another child despite having successfully had a child earlier.

What was the Union Government's basic defence of the second-child restriction?

The Union argued that surrogacy is a statutory privilege rather than an unrestricted fundamental right and can therefore be regulated by conditions imposed by Parliament.

What was the Government's argument regarding another woman's body in surrogacy?

The Government argued that surrogacy involves the use of another woman's womb, so access to it cannot automatically be treated as an absolute constitutional right.

What policy justification did the Government give for restricting surrogacy after a couple already has a child?

The restriction was defended as a measure against unnecessary surrogacy, intended to protect surrogate mothers and discourage non-essential pregnancies while considering India's demographic context.

What initial observation did Justice B.V. Nagarathna make about the restriction?

Justice Nagarathna orally observed that the restriction appeared reasonable in light of India's population and demographic concerns, while the matter remained under consideration.

Does India have a general one-child policy?

No. India does not have a general national one-child policy, which the petitioner relied upon to challenge the rationale for restricting a second child through surrogacy.

Which adoption framework was cited to show that Indian law permits adoption of more than one child?

The Adoption Regulations, 2017 were cited; they permit adoption of up to two children of any gender, subject to the applicable rules.

Which Hindu personal-law statute permits adoption of a second child in the relevant circumstances?

The Hindu Adoptions and Maintenance Act, 1956 permits adoption subject to its statutory conditions and was cited as another example showing the absence of a general one-child policy.

Which Juvenile Justice legislation was mentioned in the context of adoption of more than one child?

The Juvenile Justice (Care and Protection of Children) Act, 2015, which provides the statutory framework for adoption and does not impose a general one-child policy.

What relief did the petitioner seek from the Supreme Court?

The petitioner sought deletion or reading down of the second-child restriction so that couples suffering from secondary infertility could access surrogacy.

What fundamental right was primarily invoked by the petitioner?

Article 21, particularly reproductive autonomy, personal liberty, dignity and the right to make decisions concerning reproduction.

What is the Surrogacy (Regulation) Act, 2021?

It is India's principal statute regulating surrogacy, prohibiting commercial surrogacy while permitting altruistic surrogacy subject to prescribed eligibility and medical conditions.

Which two major statutes form the principal statutory framework for assisted reproduction and surrogacy in India?

The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.

When did the Assisted Reproductive Technology (Regulation) Act, 2021 come into force?

The Assisted Reproductive Technology (Regulation) Act, 2021 came into force in 2022 and regulates assisted reproductive technology procedures and ART clinics and banks.

What is the fundamental policy objective of India's surrogacy legislation?

It seeks to prohibit commercialisation of surrogacy, permit altruistic surrogacy in defined circumstances and prevent exploitation or commodification of reproductive labour.

What is altruistic surrogacy?

Altruistic surrogacy is surrogacy in which the surrogate receives no monetary compensation beyond permitted medical expenses and insurance.

What is commercial surrogacy?

Commercial surrogacy involves monetary or other material compensation beyond the expenses and prescribed benefits legally permitted for the surrogate.

Is commercial surrogacy permitted under the Surrogacy (Regulation) Act, 2021?

No. The Act prohibits commercial surrogacy and permits only altruistic surrogacy subject to statutory conditions.

What are the general age requirements for an intending married woman under the Surrogacy Act?

The intending woman must generally be 23–50 years old, while the intending man must generally be 26–55 years old, subject to the statutory framework.

Who may generally qualify as a single woman for surrogacy under the Act?

A widow or divorcee in the prescribed age range may qualify, generally between 35 and 45 years, subject to statutory conditions.

What is the general child-related eligibility condition for intending couples?

An intending couple must generally not have a living child, subject to the exception where the existing child suffers from a disability, life-threatening condition or incurable illness specified by law.

What certificate must an intending couple obtain before availing surrogacy?

They must satisfy the prescribed eligibility requirements, including a certificate of essentiality and other medical/procedural documentation establishing the statutory conditions.

What medical evidence is required before surrogacy can be permitted?

The intending couple must establish the prescribed medical need, including infertility or another legally recognised condition, through the required medical authorities and documentation.

What judicial or legal documentation concerning the child may be required in a surrogacy arrangement?

The framework requires documentation concerning parentage and custody, including the prescribed court order or other legally required determination.

What insurance requirement applies in the surrogacy framework?

Insurance coverage for the surrogate mother is required for the prescribed period and conditions under the regulatory framework.

Who can generally act as a surrogate mother under the 2021 framework?

A married woman who has at least one child, falls within the prescribed age range, and satisfies the statutory medical and eligibility conditions may act as a surrogate.

How many times may a woman generally act as a surrogate under the regulatory framework?

The framework restricts repeated surrogacy and generally permits a woman to act as a surrogate only once, subject to the applicable rules.

Can a surrogate mother generally use her own egg in the surrogacy procedure?

No. The framework generally requires gestational surrogacy using an embryo genetically unrelated to the surrogate mother.

What relationship requirement applies to the surrogate mother?

The surrogate must generally be a close relative of the intending couple under the statutory framework.

What does Rule 7 of the Surrogacy (Regulation) Rules, 2022 provide regarding donor eggs?

Rule 7 generally prohibits the use of donor eggs in surrogacy procedures, requiring the intending couple to use their own gametes subject to the statutory exception.

What important change was introduced by the March 2023 government notification concerning donor gametes?

The notification clarified that intending couples should use their own gametes for surrogacy, reinforcing the restriction on donor eggs.

What exception concerning donor gametes was recognised by the later amendment to the Surrogacy Rules?

The amendment allows donor gametes where a spouse in the intending couple is medically certified by the District Medical Board as requiring donor gametes because of a medical condition.

What did the Supreme Court hold concerning Rule 7 in the case involving Mayer-Rokitansky-Küster-Hauser syndrome?

The Court stayed the operation of Rule 7 in a specific case involving a woman with Mayer-Rokitansky-Küster-Hauser syndrome, a congenital condition affecting the female reproductive system.

What is Mayer-Rokitansky-Küster-Hauser syndrome (MRKH)?

MRKH is a congenital reproductive-system condition in which a woman may be born with an underdeveloped or absent uterus, while ovarian function may be preserved.

What did the Supreme Court emphasise about the "genetically related" requirement for the child?

The Court interpreted the requirement in the relevant context as requiring genetic relation to the intending husband in the case before it, rather than treating the surrogate as the genetic parent.

How did the Supreme Court characterise gestational surrogacy under the statutory scheme?

The Court described the law as "woman-centric", emphasising the medical and constitutional interests of the woman seeking gestational surrogacy.

What kinds of medical conditions can trigger the relevant gestational-surrogacy exception under Rule 14(a)?

Rule 14(a) lists specified medical or congenital conditions that may justify gestational surrogacy, subject to the statutory and medical requirements.

What are major criticisms of India's restrictive surrogacy framework?

Critics argue that banning commercial surrogacy and restricting eligibility can reduce reproductive autonomy, exclude certain family structures and impose discriminatory conditions based on marital status, gender or sexual orientation.

Which categories of persons are excluded or restricted under the current statutory eligibility framework?

The framework restricts or excludes categories such as unmarried women outside the specified category, single men, live-in partners and same-sex couples from accessing surrogacy.

What is the historical position on abortion under the Indian Penal Code?

Sections 312 and 313 IPC criminalised causing miscarriage, with limited exceptions, principally protecting circumstances where termination was necessary to save the pregnant woman's life.

Which committee recommended liberalisation and rationalisation of India's abortion law in 1964?

The Shantilal Shah Committee recommended liberalisation and rationalisation of abortion law in response to unsafe abortions and maternal mortality.

What law was enacted following the Shantilal Shah Committee's recommendations?

The Medical Termination of Pregnancy Act, 1971 was enacted to permit termination of pregnancy under specified legal and medical conditions.

What were the original gestational limits under the MTP Act, 1971?

Termination up to 12 weeks generally required the opinion of one registered medical practitioner, while termination between 12 and 20 weeks required the opinion of two registered medical practitioners.

What did the Medical Termination of Pregnancy Amendment Act, 2021 change?

It expanded access to lawful abortion, including extending protection to unmarried women and expanding eligible circumstances, while modifying the applicable gestational limits and medical-opinion requirements.

What is the significance of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) for reproductive rights?

The Supreme Court recognised privacy and decisional autonomy as constitutional rights under Article 21, providing an important foundation for reproductive autonomy.

What did the Supreme Court hold regarding abortion rights for women between 20 and 24 weeks in its reproductive-rights jurisprudence?

It recognised that unmarried women in the relevant circumstances are entitled to the same legal abortion framework applicable to married women, subject to the MTP Act.

What does reproductive autonomy mean constitutionally?

It refers to an individual's constitutional liberty and decisional autonomy concerning whether and when to have children, subject to valid legal regulation and competing constitutional interests.

What is the key constitutional tension in the second-child surrogacy case?

The case balances reproductive autonomy and Article 21 against Parliament's power to regulate surrogacy, protection of surrogate mothers, medical ethics, child welfare and public-policy concerns.

What is the central difference between a fundamental right and a statutory right in this context?

A fundamental right arises from the Constitution and receives heightened judicial protection, whereas a statutory right exists because legislation creates and defines it and may impose conditions on its exercise.

What is the constitutional status of access to surrogacy according to the Union Government?

The Union Government argues that surrogacy is a statutory privilege regulated by legislation rather than an independent, unrestricted fundamental right.

What is the Assisted Reproductive Technology (Regulation) Act, 2021 intended to regulate?

It regulates ART clinics and banks, their registration and supervision, gamete and embryo handling, informed consent, confidentiality, donor screening and related reproductive procedures.

What is the role of the National and State regulatory authorities under the ART framework?

They register and regulate ART clinics and banks, inspect facilities, enforce standards, protect patients and donors, and impose penalties for violations.

What practices does the ART framework seek to prevent?

It seeks to prevent exploitation, unsafe reproductive practices, improper commercialisation, misuse of gametes or embryos, and unethical or non-medical uses such as sex selection.

What broad international abortion-law comparison was given in the material?

Some countries such as Andorra, Malta and the Vatican State have very restrictive or near-total abortion bans; France constitutionally protects abortion access, while Ireland and New Zealand permit abortion subject to specified statutory limits.