The second issue: On surrogacy for a second child. 

A more expansive reading of the surrogacy law can help more couples. 

The Supreme Court’s recent observations about the legality of going in for surrogacy for the second child has raised the fundamental issue of what a law is meant to regulate. In a petition in the Court, a couple facing secondary infertility sought to use surrogacy, as under the Surrogacy Act, surrogacy cannot be resorted to for the second child. Their advocate argued that the state cannot interfere in the private lives and reproductive choices of citizens. Secondary infertility is when a couple is unable to conceive, or carry a pregnancy to term, though they have previously birthed children naturally. The causes are similar to primary infertility — Polycystic Ovary Syndrome, endometriosis, and lifestyle factors. The petitioners sought an exemption to have a second child through surrogacy, submitting that the definition of ‘infertility’ in the context of surrogacy, both in the ART and the Surrogacy Acts, was not restricted to only primary infertility. Under Section 4(iii)(C)(II) of India’s Surrogacy (Regulation) Act, 2021, a couple is eligible for surrogacy only if they do not have any surviving child (biological, adopted, or through surrogacy). Exceptions are made only if the existing child is mentally or physically challenged or has a life-threatening disorder. The government submitted arguments supporting the view that surrogacy cannot be deemed a fundamental right, and that it involves the use of another woman’s body. While the judge orally remarked that the restriction imposed under the provision was “reasonable”, the Court has decided to examine whether a law banning married couples facing secondary infertility from using surrogacy to have a second child amounts to a restriction on the reproductive choices of citizens.

It may be noted that the Court recently diluted the age specification for surrogacy, allowing age relaxation for couples who had frozen embryos prior to passing the Act. If the avowed intent of the law, as argued at the stage of debate, is to prevent commercial surrogacy, or exploitative situations taking advantage of vulnerable women, besides regulating the mushrooming fertility centres (in conjunction with the ART Act), then to impose restrictions differentiating between primary and secondary fertility seems like splitting hairs. Currently, there is no law restricting the number of children a person can have in India, though many States have incentivised a two-child norm in terms of government benefits, jobs or political offices. A more expansive interpretation of the law, facilitating, for all those in need, access to the benefits of technology, is likely to satisfy two requirements — assisting intending parents, and preventing commercial surrogacy.