Surrogacy in India

Surrogacy in India

In 2025, a landmark petition was filed before the Supreme Court of India challenging the existing legal restriction on availing surrogacy for a second child. This case has ignited debate on the scope of reproductive autonomy, the right to personal liberty under Article 21 of the Constitution, and the state’s legitimate interest in population control and ethical regulation of assisted reproductive technologies. The case represents a critical intersection of constitutional rights, medical ethics, and societal concerns, as India navigates a rapidly evolving reproductive technology landscape.

Background

The petition arose from a married couple seeking judicial permission to undergo surrogacy for their second child. Under the Surrogacy (Regulation) Act, 2021, couples with an existing child—whether biological, adopted, or born via surrogacy—are prohibited from commissioning another surrogacy. During hearings, Justice B.V. Nagarathna acknowledged the rationale behind the restriction, citing India’s population pressures, but also emphasized the need for governmental responses and additional evidence before arriving at a final decision. The petition has thus prompted a detailed examination of whether such restrictions strike an appropriate balance between individual freedoms and societal welfare.

Understanding Surrogacy

Definition: Surrogacy is a reproductive arrangement wherein a woman, termed the surrogate mother, carries and delivers a child for intending parents. The child is handed over to the parents post-birth. Surrogacy provides a solution for couples facing infertility or medical contraindications to pregnancy.

Types of Surrogacy and Legal Status in India:

1. Traditional Surrogacy:
    
   • Fertilization involves the surrogate’s own egg, creating a genetic link.
      
   • Legal Status: Prohibited in India due to ethical and medical concerns.
      
2. Gestational Surrogacy:
    
   • Embryos created from the intended parents’ sperm and egg are implanted in the surrogate.
      
   • The surrogate has no genetic connection to the child.
      
   • Legal Status: Permitted strictly under medical and legal oversight.
      
3. Altruistic Surrogacy:
    
   • The surrogate receives reimbursement for medical and related expenses only.
      
   • Legal Status: Allowed.
      
4. Commercial Surrogacy:
    
   • Financial compensation beyond expenses is prohibited.
      
   • Legal Status: Completely banned under Indian law.
      

Legal Framework: Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 governs surrogacy practices in India, promoting ethical altruistic surrogacy while preventing exploitation and commercialisation.

Key Provisions:

• Eligibility: Only legally married Indian couples with proven medical infertility may commission surrogacy. Age limits: Husband 26–55 years; Wife 23–50 years.
   
• Prohibitions: Commercial surrogacy is banned; foreign nationals, single parents, live-in partners, and same-sex couples cannot access surrogacy.
   
• Restriction on Second Surrogacy: Couples already having one child are barred from surrogacy except in cases of incurable or life-threatening medical conditions of the first child.
   

This framework attempts to reconcile individual reproductive needs with ethical considerations and societal concerns regarding population growth.

Constitutional Challenge and Controversy

The ban on second surrogacy has been challenged as violating reproductive autonomy and personal liberty under Article 21. Petitioners argue:

• Infertility may arise or persist even after a first child, making a blanket ban arbitrary.
   
• India has no statutory one-child policy, and therefore, population control cannot be a lawful basis for prohibiting second surrogacy.
   
• Reproductive rights are intrinsic to personal liberty, encompassing the right to decide if and when to have children.
   

Government’s Position:

• Surrogacy is a regulated privilege, not a fundamental right.
   
• Restrictions are necessary to protect surrogate mothers, prevent exploitation, and maintain ethical standards in assisted reproduction.
   
• Limiting surrogacy aligns with the state’s interest in population management and responsible reproductive practices.
   

The petition thus raises the core question: Can the state reasonably restrict reproductive choice to safeguard societal interests without violating fundamental rights?

Constitutional and Judicial Perspectives

Article 21: Protects the right to life and personal liberty, encompassing dignity, bodily integrity, and reproductive autonomy.

Key Judicial Precedents:

1. Suchita Srivastava v. Chandigarh Administration (2009): Recognized reproductive choice as an essential aspect of personal liberty under Article 21.
    
2. K.S. Puttaswamy v. Union of India (2017): Affirmed that the right to privacy, including reproductive decisions, is intrinsic to constitutional freedoms.
    
3. International Context: Courts worldwide increasingly recognize reproductive autonomy as a fundamental human right, emphasizing informed consent, ethical safeguards, and personal decision-making.
    

Interpretation:
 The judiciary balances individual rights with legitimate state interests. Surrogacy laws are intended to protect both intending parents and surrogate mothers while preventing commercial exploitation. The question of whether a second-child restriction constitutes a reasonable restriction under Article 21 remains unresolved.

Key Challenges

The debate around second surrogacy reflects several complex tensions:

1. Reconciling Individual Rights and Public Policy: Balancing reproductive autonomy against population control and ethical oversight is intricate.
    
2. Protecting Surrogate Mothers: Ensuring medical safety, informed consent, and protection from exploitation is central.
    
3. Inclusivity Concerns: Current laws exclude single parents, LGBTQ+ couples, and foreign nationals, raising questions of fairness and equality.
    
4. Ethical and Technological Oversight: Emerging reproductive technologies require continuous ethical review and legal adaptation.
    
5. Judicial Consistency: Courts must ensure uniformity in interpreting rights without leaving scope for arbitrary restrictions.
    

Way Forward

Addressing the challenges requires a multi-pronged approach:

1. Policy Review: Reassess the one-child surrogacy restriction to ensure it aligns with constitutional guarantees while respecting ethical and population considerations.
    
2. Inclusive Stakeholder Consultation: Involve medical experts, ethicists, legal scholars, and civil society in drafting policy revisions.
    
3. Awareness and Education: Educate intending parents and surrogates about their rights, obligations, and ethical responsibilities.
    
4. Strengthening Judicial Oversight: Courts should monitor surrogacy regulations to ensure reasonableness, proportionality, and compliance with Article 21 protections.
    
5. Ethical Safeguards: Codify protocols ensuring health, consent, and compensation transparency for surrogate mothers.
    
6. International Best Practices: Incorporate lessons from countries with progressive surrogacy frameworks, balancing rights, ethics, and access.
    

Social and Policy Implications

• Women’s Rights: The case reinforces that surrogacy law must empower women, particularly surrogates, with decision-making authority and protections.
   
• Population Policy: The debate tests whether population management can legitimately override personal reproductive choices in a rights-based democracy.
   
• Equity in Family Formation: Ensuring access for non-traditional families remains a crucial concern for gender and sexual minorities.
   
• Technological Evolution: Assisted reproductive technologies evolve rapidly, necessitating adaptive legislation that safeguards rights without stifling medical advancement.
   

Conclusion

The Supreme Court’s review of the surrogacy ban for second children represents a critical moment in India’s constitutional jurisprudence on reproductive rights. The ruling has the potential to clarify the scope of personal liberty, ensure ethical surrogacy practices, and address evolving societal realities.

As assisted reproduction becomes increasingly central to family creation, India faces the task of crafting a framework that:

• Safeguards autonomy and dignity of intending parents.
   
• Protects surrogate mothers from exploitation.
   
• Respects ethical, social, and population considerations.
   
• Ensures legal clarity and judicial oversight in a rapidly changing technological landscape.
   

The outcome will set a defining precedent for reproductive justice in India, balancing individual freedoms with public interest and ethical responsibility, while reflecting the nation’s evolving commitment to human rights, medical ethics, and equitable family formation.