Top court to examine provision that bars surrogacy for 2nd child

Caused by factors such as age, hormonal changes, medical conditions and lifestyle, secondary infertility is a condition that leads to an inability to have a successful pregnancy or give birth after having at least one child without the use of fertility treatments. The condition can affect both men and women.

Under the Surrogacy (Regulation) Act, 2021, one of the provisions under Section 4 debars an intending couple with a surviving child (biological, adopted or through surrogacy) from availing surrogacy procedures for a second child, unless the District Medical Board certifies that the first child is mentally or physically challenged or suffers from a life-threatening disorder or a fatal illness with no permanent cure.

Taking note of the submission made by advocate Mohini Priya – who was representing an intending couple facing secondary infertility -- a Bench of Justice BV Nagarathna and Justice R Mahadevan observed that the restriction imposed under the Act was “reasonable” in view of the growing population of the country.

Contending that the government could not interfere in the private lives of citizens, the advocate submitted that it amounted to a state-imposed restriction on the reproductive choices of the citizens. The definition of ‘infertility’ in the context of surrogacy cannot be restricted to primary infertility, she added.

Terming secondary infertility as a complex and emotionally challenging issue that could be just as distressing as primary infertility, Priya urged the top court to read down the relevant provisions of the 2021 Act to allow surrogacy for couples facing secondary infertility.

However, the Centre has opposed the petition, saying that availing surrogacy could not be claimed as a fundamental right and that it was purely a statutory right, subject to conditions and restrictions prescribed under the 2021 Act.

Describing it as a well-considered provision, the government said it balanced the interests of an intending couple having genuine and grave need to have a second child through surrogacy as it offered an exception for couples with mentally or physically challenged child or a child suffering from a life-threatening disorder or a fatal illness.

‘Can’t apply age limit retrospectively’

• In another case, on October 9, the Supreme Court has ruled that couples who began their surrogacy process before the enactment of the surrogacy law can proceed with surrogacy, despite being over the age limit set by the law.
• “We have held that the age restriction will not apply if the couple had frozen embryos or were in the process of transferring embryos to a surrogate mother before the Act,” a Bench led by Nagarathna had said, allowing petitions filed by three couples.
• The current Act prescribes that a woman must be between 23 and 50 years of age and her husband between 26 and 55 years to avail benefits of surrogacy. However, the Bench said the age restriction could not be applied retrospectively.