Surrogacy Ban and the Supreme Court Petition (Polity)
05.11.2025
Surrogacy Ban and the Supreme Court Petition (Polity)
Context
In 2025, a petition before the Supreme Court challenged the ban on availing surrogacy for a second child, raising constitutional questions on reproductive autonomy, personal liberty under Article 21, and population control policy.
About the News
Background:
A married couple sought the Supreme Court’s permission for second-child surrogacy. The Surrogacy (Regulation) Act, 2021 disallows surrogacy if a couple already has a biological, adopted, or surrogate child.
Court Observations:
Justice B.V. Nagarathna noted the restriction appears justified considering population concerns but sought government responses before judgment.
Understanding Surrogacy
Definition:
Surrogacy involves a woman carrying a pregnancy for intending parents and handing over the child post-birth.
|
Type of Surrogacy |
Description |
Status in India |
|
Traditional |
The surrogate mother’s egg is used; genetic link exists between the surrogate and child. |
Not permitted |
|
Gestational |
The embryo is created using the intended parents’ sperm and egg; no genetic link with surrogate. |
Permitted under strict medical and legal conditions |
|
Altruistic |
The surrogate receives only medical and related expense reimbursements; no commercial payment allowed. |
Allowed |
|
Commercial |
The surrogate receives financial compensation beyond medical costs. |
Completely banned |
Legal Framework: Surrogacy (Regulation) Act, 2021
Eligibility:
- Legally married Indian couples only
- Husband: 26–55 years; Wife: 23–50 years
- Medical proof of infertility required
Prohibitions:
- Ban on commercial surrogacy
- Excludes foreigners, single parents, same-sex and live-in couples
- Disallows second surrogacy unless the first child suffers from an incurable disease
The Current Controversy
Petitioner’s Stand:
- Restriction violates reproductive and personal liberty under Article 21.
- Infertility may occur later; a blanket ban is arbitrary.
- India has no legal one-child policy.
Government’s Argument:
- Surrogacy is a privilege, not a right.
- Restriction serves ethical and population concerns.
- The surrogate’s bodily autonomy must be protected.
Constitutional and Judicial Perspective
- Article 21: Protects life and personal liberty, including reproductive autonomy.
- Key Judgments:
- Suchita Srivastava v. Chandigarh Administration (2009) – affirmed reproductive choice.
- K.S. Puttaswamy v. Union of India (2017) – recognised privacy and reproductive decision-making as fundamental rights.
- Suchita Srivastava v. Chandigarh Administration (2009) – affirmed reproductive choice.
These cases highlight that state regulation must not unreasonably limit personal autonomy.
Challenges
- Overlap between individual rights and population policy
- Protection of surrogate mothers
- Exclusion of single and LGBTQ+ applicants
- Maintaining judicial consistency and ethical balance
Way Forward
- Reassess one-child restriction under Article 21
- Ensure inclusive, consultative policymaking
- Promote awareness on rights and ethical practices
- Strengthen judicial and ethical oversight
Conclusion
The surrogacy ban debate reflects the tension between reproductive freedom and state control. The Supreme Court’s verdict will be pivotal in balancing constitutional rights with ethical and social safeguards in assisted reproduction.