The Supreme Court has sought the Central government's response regarding a petition challenging the legislation that prohibits married couples from opting for surrogacy for a second child if they already have a healthy first child.

Justices BV Nagarathna and Augustine George Masih, presiding over the bench, have issued a notice to the Central government subsequent to hearing advocate Mohini Priya, who represented the petitioners.

The Surrogacy Act does not allow couples experiencing secondary infertility (the inability to conceive or bear a child after previously having one) to access the advantages of surrogacy.

Specifically, Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021 mandates that couples seeking to have a child via surrogacy must obtain an eligibility certificate confirming that the couple does not have any living child, whether biological, adopted, or through surrogacy.

The aforementioned limitation has been brought before the Supreme Court for challenge. The petitioners argue that married couples should have the right to exercise their reproductive choice by opting for surrogacy to conceive a second child.

The petitioners further emphasized that their petition aims to halt unwarranted state intervention in the private affairs of citizens. They argue that Section 4 (iii)(C)(ii) of the Surrogacy (Regulation) Act, 2021, should be invalidated as it lacks a rational basis.

Therefore, the petitioners have urged the Court to interpret the challenged restriction in Section 4 in a manner that it does not impose any mandatory requirement.

Effectively, the petitioners have requested the court to issue directives permitting couples to have a second child through surrogacy. Additionally, it's noteworthy that a group of public interest litigation (PIL) petitions challenging the prohibition on commercial surrogacy is already awaiting consideration before the Supreme Court.

In these PILs, the petitioners contest the legality of both the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), along with the Rules established under each Act. In October of the previous year, the Supreme Court noted that a blanket prohibition on utilizing donor gametes (such as eggs or sperm) in gestational surrogacies seemed to contradict the provisions outlined in these Rules.

The Supreme Court is also currently considering two petitions challenging the constitutionality of Section 2(1)(s) of the Surrogacy Act, which precludes unmarried women from serving as surrogate mothers.