TheInterviewTimes.com | Surrogacy Law in India faces constitutional scrutiny as the Supreme Court examines whether banning surrogacy for couples with an existing child violates reproductive autonomy. A deep analysis of the Surrogacy (Regulation) Act, 2021—its rights, limitations, patriarchal concerns, legal framework, challenges, and reforms.
Surrogacy Law in India: Rights & Limitations Under Supreme Court Review
TheInterviewTimes.com | 18 November 2025: Surrogacy Law in India is once again at the centre of national attention as the Supreme Court agrees to examine whether the ban on using surrogacy for a second child violates the constitutional right to reproductive autonomy. The debate reopens long-standing concerns that the Surrogacy (Regulation) Act, 2021, while aiming to curb exploitation, reinforces patriarchal structures and restricts reproductive freedoms.
Why the Surrogacy Law Is Back in the Headlines
The Supreme Court will review the validity of Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021. The provision prohibits couples from opting for surrogacy if they already have a biological, adopted, or surrogate child—unless the existing child suffers from a disability, incurable disease, or life-threatening condition.
Couples suffering from secondary infertility argue that this ban violates their Article 21 rights to reproductive choice, bodily autonomy, and privacy. They point out that India has no “one-child policy,” and adoption laws permit multiple children. Denying them surrogacy, therefore, amounts to state intrusion into private reproductive decisions.
The emotional and medical distress associated with secondary infertility further strengthens their argument that the law must be interpreted through a rights-based lens.
Government’s View: Surrogacy Is Not a Constitutional Right
The Union Government argues that surrogacy involves using another woman’s body; therefore, it cannot be considered a fundamental right. It maintains that surrogacy is a statutory right and must be regulated to protect surrogate mothers from unnecessary risks.
The restriction, the government claims, is reasonable, intended to prevent the misuse of surrogacy where the couple already has a healthy child. The proviso allowing surrogacy for serious medical conditions is seen as a safeguard ensuring that only genuine cases access the process.
Supreme Court’s Stand: A Need for Deeper Examination
The Supreme Court has said the provision seems reasonable, especially in the context of India’s large population. However, the Court also recognised that reproductive autonomy and bodily integrity are integral to Article 21. Therefore, a detailed constitutional analysis is necessary to determine whether the restriction conflicts with reproductive freedoms and privacy.
Key Legal Provisions Governing Surrogacy in India
Surrogacy (Regulation) Act, 2021
The Surrogacy Law in India is built on a high-regulation framework with the following key features:
- Only altruistic surrogacy permitted; commercial surrogacy banned entirely.
- Eligibility limited to married Indian couples (men 26–55, women 25–50), and widows or divorcees aged 35–45.
- Couples must have no existing child to qualify.
- Surrogate mother requirements:
- Must be a close relative
- Aged 25–35
- Married with at least one child
- Can act as a surrogate only once
- Rule 7 restriction on donor eggs, though currently stayed by the Supreme Court for certain medical conditions.
- 2022 Amendment: Allows donor gametes if one spouse faces a medical condition—but excludes cases where both partners have infertility issues.
- Divorced or widowed women must use their own eggs, restricting options for many.
Challenges Embedded in India’s Surrogacy Framework
1. Protection vs. Autonomy: A Delicate Balance
While the law aims to prevent exploitation, the complete ban on commercial surrogacy restricts women’s reproductive labour and autonomy. Critics argue it assumes women cannot make independent decisions regarding compensation for gestational work.
2. Patriarchal Undercurrents
By restricting women from participating in commercial surrogacy and limiting choices for intending mothers, the law inadvertently reinforces patriarchal norms. It curtails a woman’s agency over her own body and restricts reproductive freedoms protected under Article 21.
3. Emotional and Social Burden of Altruistic Surrogacy
Since only close relatives may act as surrogates, emotional pressure within families becomes unavoidable. This also significantly reduces the availability of surrogate mothers, making the framework impractical.
4. Lack of Professional Support
Barring surrogacy agencies eliminates professional guidance, creating unstructured arrangements that may increase conflict and reduce transparency.
5. Discriminatory Eligibility Criteria
Unmarried individuals, single men, LGBTQ+ couples, and live-in partners are excluded entirely. The law recognises only heteronormative, marital family structures, which fails to reflect modern social realities.
Surrogacy Law in India: What Reforms Are Required?
1. Revisit Restrictive Eligibility Rules
Reforms must account for secondary infertility, access to donor gametes, and inclusiveness for single and non-traditional families.
2. Strengthen Safeguards Instead of Imposing Blanket Bans
Instead of banning commercial surrogacy, regulated compensation, informed consent frameworks, and strict medical oversight can provide better protection.
3. Mandatory Support Systems
Legal, medical, and psychological counselling must be mandatory to minimise coercion and reduce emotional strain for both surrogate and intending parents.
4. Empower Institutional Mechanisms
Stronger Surrogacy Boards with modern monitoring tools and grievance redressal systems can improve transparency and regulation.
5. Rights-Based, Inclusive Policy Making
Any future amendment must balance protection with autonomy—upholding constitutional values of dignity, privacy, and equality.
Conclusion
As the Supreme Court re-evaluates the prohibition on surrogacy for couples with an existing child, India has a crucial opportunity to reconsider the broader framework of the Surrogacy Law in India. A progressive, rights-based regulatory model—one that ensures ethical practices without curbing reproductive autonomy—can create a more inclusive and equitable surrogacy ecosystem aligned with modern constitutional values.