Legal Interpretations and Challenges of Surrogacy in India
Supreme Court Observations
The Supreme Court is examining the legalities surrounding surrogacy for a second child, questioning the regulatory scope of the law.
Case Context
- A couple, facing secondary infertility, petitioned for surrogacy as the Surrogacy Act prohibits it for second children.
- Their advocate argued that reproductive choices are a private matter, and the state should not interfere.
Understanding Secondary Infertility
- Defined as the inability to conceive or carry a pregnancy to term after previously having a child.
- Causes include Polycystic Ovary Syndrome, endometriosis, and lifestyle factors.
Surrogacy (Regulation) Act, 2021
- Under Section 4(iii)(C)(II), eligibility for surrogacy requires no surviving child unless the child has specific challenges.
- The government argues surrogacy is not a fundamental right due to the involvement of another woman's body.
Judicial Considerations
- The Court is evaluating if banning surrogacy for secondary infertility limits reproductive choice.
- Recent rulings have relaxed age specifications for surrogacy for couples with frozen embryos.
Intent of the Law
- The law aims to prevent commercial surrogacy and exploitation, while regulating fertility centers.
- Debate on differentiating primary and secondary infertility seen as overly meticulous.
Current Norms and Interpretation
- No law limits the number of children in India, though a two-child policy is incentivized in some regions.
- An inclusive interpretation of the law could help parents while preventing commercial surrogacy.
