Copyright tribuneindia
The Supreme Court has agreed to examine if a provision of the Surrogacy (Regulation) Act, 2021, 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.Secondary infertility is a condition caused by factors such as age, hormonal changes, medical conditions and lifestyle, leading to inability to have a successful pregnancy or give birth after having at least one child without the use of fertility treatments. It can affect both men and women.One of the provisions under Section 4 of the Act debars an intending couple having any surviving child biologically or through adoption or through surrogacy earlier from availing of surrogacy procedures for a second child, unless the District Medical Board certifies that the first child is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure.Taking note of the submission made by advocate Mohini Priya -- representing an intending couple facing secondary infertility, a Bench of Justice BV Nagarathna and Justice R Mahadevan observed that the restriction imposed under the Act was “reasonable” in view of the growing population of the country.Contending that the government cannot interfere in the private lives, she submitted that it amounted to a state-imposed restriction on the reproductive choices of citizens. The definition of ‘infertility’ in the context of surrogacy cannot be restricted to only primary infertility, she submitted.Terming secondary infertility as a complex and emotionally challenging issue that could be just as distressing as primary infertility, she urged the top court to read down the relevant provisions of the 2021 Act to allow surrogacy for couples facing secondary infertility.However, the Centre has opposed the petition, saying that availing surrogacy cannot be claimed as a fundamental right and that it was purely a statutory right subject to conditions and restrictions prescribed under the 2021 Act.Describing it as a well-considered provision, she said it balanced the interests of an intending couple having genuine, grave need to have a second child through surrogacy as it offered an exception for couples with mentally or physically challenged child or a child suffering from a life-threatening disorder or a fatal illness with no permanent cure.On October 9, the Supreme Court had ruled that couples who began their surrogacy process before the enactment of the surrogacy law can proceed with surrogacy despite being over the age limit set by the law."We have held that if the surrogacy process has begun before the Act and they had frozen embryos or were in the process of transferring embryos to a surrogate mother - in that case, the age restriction will not apply,” a Bench led by Nagarathna had said, allowing petitions filed by three couples.If any other similarly placed couple wished to avail remedies in terms of this judgment, such a couple may approach the high court concerned to seek appropriate orders, the top court had said.Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, prescribes that legally the woman must be between 23 and 50 years of age and her husband between 26 and 55 years in order to avail benefits of surrogacy.However, the Bench said the right to surrogacy of such couples crystallised when they had their embryos frozen under the law prevailing at that time and the age restriction under the Act cannot apply retrospectively to such couples.
