Syllabus: Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.
Context
- Supreme Court observations about legality of surrogacy for second child raised fundamental issue of law’s regulatory scope.
Case Details
- Couple facing secondary infertility sought surrogacy; Surrogacy Act prohibits surrogacy for second child restricting reproductive choices.
- Advocate argued: state cannot interfere in private lives and reproductive choices of citizens ensuring autonomy.
- Secondary infertility: couple unable to conceive/carry pregnancy to term though previously birthed children naturally showing medical condition.
Legal Framework
- Section 4(iii)(C)(II) of Surrogacy (Regulation) Act, 2021: couple eligible only if no surviving child (biological, adopted, surrogacy).
- Exceptions: existing child is mentally or physically challenged or has life-threatening disorder allowing surrogacy for second child.
Government’s Stand
- Government submitted: surrogacy cannot be deemed fundamental right; involves use of another woman’s body thus requiring regulation.
Court’s Response
- Judge orally remarked: restriction imposed under provision was “reasonable” but decided to examine further comprehensively.
- Court to examine: whether law banning married couples with secondary infertility from surrogacy amounts to restriction on reproductive choices.
- Court recently diluted age specification allowing age relaxation for couples with frozen embryos prior to Act showing flexibility.
Analysis
- Avowed intent: prevent commercial surrogacy, exploitative situations, regulate fertility centers (with ART Act) ensuring ethical practices.
- Imposing restrictions differentiating between primary and secondary fertility is without substantial justification comprehensively.
- Currently no law restricting the number of children in India however many States incentivized two-child norm for government benefits/jobs.
- More expansive interpretation facilitating access to technology for all in need likely to satisfy two requirements comprehensively.
- Would assist intending parents and prevent commercial surrogacy ensuring ethical use of reproductive technology for genuine needs.