Supreme Court to review ban on surrogacy for couples with one child

The Supreme Court has agreed to examine whether a law banning married couples facing secondary infertility from using surrogacy to have a second child amounts to a restriction by the State on the reproductive choices of citizens.

An intending couple having any surviving child biologically or through adoption or through surrogacy earlier cannot avail surrogacy procedures for a second child.

However, if the surviving child is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure, the couple can avail surrogacy for a second child after obtaining medical certificate from a district medical board and with the approval of the appropriate authority.

A bench of Justices BV Nagarathna and R Mahadevan took note of the submission by a lawyer appearing for a couple facing secondary infertility.

During the hearing, Justice Nagarathna orally observed that the restriction imposed under the provision was "reasonable" in view of the growing population of the country.

The lawyer argued that the government cannot interfere in the private lives and reproductive choices of citizens.

She submitted that the definition of 'infertility' in the context of surrogacy both in the assisted reproductive technologies act and the Surrogacy Act was not restricted to only primary infertility.