The Supreme Court on Nov 4th is reviewing whether the prohibition on commissioning surrogacy for a second child under the Surrogacy (Regulation) Act, 2021 constitutes an interference in citizens’ private lives.
In its response, government has supported the law, explaining that no individual has right to another person's body and surrogacy therefore is not a constitutional right.
Under the Surrogacy (Regulation) Act, 2021, couples in India are subject to limits regarding surrogacy. The law prohibits surrogacy for a second child, meaning that an intending couple who already have one biological child may not commission a surrogate for a second child.
On October 10, 2025, the Supreme Court of India raised questions about the rationality of the restriction. The Court noted that there is “no age bar for having kids or adoption” in India, yet surrogacy is restricted for a second child.
The regulation aims to curb commercialisation of surrogacy, ensure the rights and health of surrogate mothers, and prevent exploitation. Only altruistic surrogacy with no financial compensation beyond medical cost —is permitted under this law.
For Indian married couples seeking a second child via surrogacy, the rule means they must either carry the pregnancy themselves, adopt, or seek legal re-interpretation. Cases involving embryo freezing before the law commenced (January 2022) are also under legal review, as the Court considers retrospective effect.
Medical infertility is a required condition for surrogacy in India, the couple must be infertile for a minimum period, have proof of infertility, and meet age/marriage criteria.
The government highlighted that the law provides an exception for couples who already have a child that is mentally or physically challenged or suffers from a life-threatening or incurable illness. This exception applies irrespective of whether the existing child is biological, adopted, or born through surrogacy.
Secondary infertility refers to the inability to conceive or carry a subsequent pregnancy after previously having had at least one healthy birth.
About 10-14% of couples may be affected by secondary infertility.
Common causes of secondary infertility include :
Advanced maternal or paternal age altering egg/sperm quality.
Damage or blockage in fallopian tubes or uterus due to previous pregnancy or surgery.
Lifestyle factors such as obesity, diabetes, smoking.
Male factor infertility (e.g., low sperm count or motility) even if first child was conceived naturally.
If a couple has had one child and is facing conception difficulties for a second baby, consulting a fertility specialist early is advisable.
Understanding legal eligibility for surrogacy is vital: age, marriage duration, medical infertility proof and other conditions must be satisfied under Indian law.
Prevention and lifestyle optimisation maintaining healthy weight, managing diabetes/hypertension, avoiding smoking may improve fertility outcomes.
Adoption remains an alternate route to family expansion in India, given surrogacy restrictions.
Legal challenges to the second-child surrogacy rule are ongoing; couples are advised to seek updated regulatory and medical guidance.
“SC: There’s no age bar for having kids or adoption, then why for surrogacy?” Times of India, October 10, 2025. https://timesofindia.indiatimes.com/india/sc-theres-no-age-bar-for-having-kids-or-adoption-then-why-for-surrogacy/articleshow/124441445.cms.
Myers, Jenny. “Secondary Infertility: Why Does It Happen?” Mayo Clinic, accessed November 5, 2025. https://www.mayoclinic.org/diseases-conditions/infertility/expert-answers/secondary-infertility/faq-20058272.
“Infertility: Fact sheet.” World Health Organization, November 2024. https://www.who.int/news-room/fact-sheets/detail/infertility.
“Secondary Infertility: Causes, Signs, Diagnosis & Treatments.” Cleveland Clinic, accessed November 5, 2025. https://my.clevelandclinic.org/health/diseases/21139-secondary-infertility.
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