By Advocate Karan Dua | Vintage Litigation, New Delhi | Published: September 2026

Second child surrogacy in India is currently restricted under the Surrogacy (Regulation) Act, 2021. A married couple who already has a surviving child generally cannot pursue surrogacy for another child, subject to a narrow medical exception. The Supreme Court is examining whether this restriction should continue to apply to couples experiencing secondary infertility.

For a married couple who already has one child and is now facing secondary infertility — the inability to conceive again despite a previous successful pregnancy — Indian law currently says no to surrogacy, with only a narrow medical exception. The Supreme Court has agreed to examine whether that blanket restriction actually holds up against the constitutional rights the couples challenging it say are at stake. This is a genuinely significant question sitting at the intersection of reproductive autonomy, family law, and population policy, and it’s worth understanding clearly, without taking a side on how it should ultimately be resolved.

This is a question we’re increasingly asked about, particularly by couples who assumed, reasonably, that having successfully had one child meant a second would simply be a matter of trying again or pursuing standard fertility treatment. Secondary infertility often catches people off guard precisely because it wasn’t a concern the first time around, and discovering that surrogacy — a route that might otherwise be a natural next option — is currently closed off entirely, except in a narrow set of circumstances tied to an existing child’s health, can be genuinely disorienting.

What the Current Law Actually Says

Surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022, following years of legislative debate about how to regulate a practice that had, until then, operated with relatively little oversight and had drawn international criticism over the commercial exploitation of surrogate mothers.

Under the current framework, a married couple with any surviving child — whether that child was born biologically, through adoption, or through an earlier surrogacy arrangement — is not permitted to pursue surrogacy again for an additional child. This restriction applies regardless of the reason a couple might want a second child through surrogacy, with one specific, narrow exception: where the surviving child has a mental or physical disability, or suffers from a life-threatening condition without a permanent cure, a couple can seek a fresh surrogacy arrangement, provided they obtain a medical certificate from a District Medical Board and secure approval from the relevant appropriate authority.

This means a couple facing secondary infertility — where their first child was conceived naturally or through earlier fertility treatment, but a second pregnancy simply isn’t medically achievable — currently has no pathway to surrogacy for a second child, unless their existing child happens to fall within that specific medical exception. It’s this precise gap that the pending Supreme Court matter is examining.

Why This Restriction Exists in the First Place

It’s worth understanding the reasoning behind the current framework before turning to the challenge against it. The Surrogacy (Regulation) Act was drafted with the explicit goal of preventing the commercialization and potential exploitation of surrogacy, following years of concern — both domestic and international — about India’s earlier, largely unregulated commercial surrogacy industry, where financial vulnerability among surrogate mothers raised genuine ethical questions about consent and exploitation.

Restricting surrogacy to situations of genuine, demonstrated medical necessity — rather than allowing it more broadly, including for family-size preferences beyond an existing child — reflects a deliberate legislative choice to keep the practice tightly bounded. During the hearing on this matter, Justice B.V. Nagarathna specifically noted that the restriction could reasonably be viewed as connected to broader concerns about population growth, suggesting the provision isn’t purely about preventing exploitation, but also reflects a policy judgment about family size in a country still managing significant population pressures.

How This Interacts With the Assisted Reproductive Technology Act

It’s worth understanding that surrogacy doesn’t exist as a standalone legal category — it sits alongside the Assisted Reproductive Technology (Regulation) Act, 2021, passed around the same time, which governs other fertility treatments like IVF and egg or sperm donation. The petitioners’ argument in this case specifically draws on both statutes together, since the definition of “infertility” used across this connected legislative framework is what’s actually being questioned.

This matters because a couple facing secondary infertility might well have already attempted other assisted reproductive options under the ART Act before considering surrogacy specifically — and the argument being made is that if secondary infertility is recognised as a genuine medical reality for the purposes of accessing IVF or other ART treatments, there’s no principled reason it should be treated differently, and more restrictively, when it comes to surrogacy specifically. This cross-statutory consistency argument is a meaningful part of the petitioners’ broader case, beyond the standalone constitutional autonomy argument discussed separately below.

The Case Now Before the Supreme Court

The challenge was brought by a couple experiencing secondary infertility, who argued that being denied the option of surrogacy for a second child — despite their circumstances not fitting the narrow medical exception — amounted to unwarranted government intervention in a fundamentally private, personal decision. Their counsel argued that the definition of “infertility” used in both the Surrogacy Act and the related Assisted Reproductive Technology (Regulation) Act shouldn’t be understood as limited to primary infertility alone — the inability to have any child at all — and should instead be interpreted to include secondary infertility, which is the specific situation many couples in this position actually face.

A bench of Justices B.V. Nagarathna and R. Mahadevan heard arguments on this question, with the Court engaging directly with the tension at the center of the case: personal reproductive autonomy on one side, and the state’s stated interest in preventing exploitation and managing broader social considerations, including population policy, on the other.

The Argument for Striking Down or Narrowing the Restriction

Those challenging the current restriction frame their argument around personal choice and family autonomy — the idea that a married couple’s decision about how many children to have, and how to achieve that within a genuine medical constraint like secondary infertility, is fundamentally a private matter that the state has limited legitimate basis to restrict, particularly where the restriction isn’t tied to preventing any form of exploitation or commercial abuse specifically.

This argument draws on a broader current in Indian constitutional law recognising reproductive autonomy as an aspect of personal liberty protected under Article 21 — the same broad category of rights that has informed other reproductive rights jurisprudence in India, including decisions on abortion access. From this perspective, restricting surrogacy access based on family size, rather than based on preventing genuine exploitation or ensuring proper medical and ethical oversight, is argued to be an overreach that doesn’t serve the Act’s own stated purpose.

The Argument for Retaining the Current Restriction

The countervailing position, reflected in Justice Nagarathna’s observation about the restriction being “reasonable” given population considerations, rests on the idea that the state does have a legitimate interest in managing surrogacy access carefully, and that drawing a clear, bright-line restriction — rather than case-by-case discretionary decisions — serves genuine regulatory purposes, including preventing the kind of gradual expansion of surrogacy access that could reopen exactly the exploitation concerns the 2021 Act was designed to close off.

There’s also a practical regulatory concern worth noting: expanding the exception beyond genuine medical necessity involving an existing child’s health could create real difficulty in drawing a workable, consistently applied line for future cases — once family-size preference alone becomes a valid basis for a second surrogacy arrangement, defining where that line stops becomes considerably harder than the current framework’s narrower, medically-anchored exception.

What the Current Legal Position Actually Is

This is worth being completely clear about: as of today, the restriction remains in force, and the Supreme Court’s review, while significant, hasn’t resulted in the current law being struck down or suspended. Couples facing secondary infertility, without an existing child who independently qualifies under the medical exception, currently have no legal pathway to surrogacy for an additional child under Indian law. The case remains under judicial consideration, and any change to this position will only take effect once the Court reaches and delivers a final ruling.

The Existing Medical Exception — How It Actually Works

For couples whose situation might fall within the current exception, it’s worth understanding the actual process involved, since it’s genuinely narrow and requires specific documentation:

• The exception applies only where the couple’s existing surviving child has a mental or physical disability, or a life-threatening condition without a permanent cure — it does not extend to general secondary infertility without this specific circumstance.
• A medical certificate from a District Medical Board is required, confirming the existing child’s qualifying condition.
• Approval from the appropriate authority designated under the Act must also be obtained before proceeding.
• All surrogacy arrangements, including those under this exception, must go through a registered surrogacy clinic, certified and regulated under the Act’s broader framework, with the arrangement itself remaining altruistic — commercial surrogacy remains banned outright, with penalties including imprisonment of up to ten years for violations.

What Happens If the Restriction Is Eventually Struck Down or Narrowed

If the Supreme Court were to find the current restriction unconstitutional as applied to genuine secondary infertility, the most likely practical outcome would involve either the Court reading a broader interpretation of “infertility” into the existing statutory language — extending the exception to cover secondary infertility generally, not just cases involving an existing child’s specific medical condition — or directing Parliament to revisit and amend the provision to address the gap identified. Either path would take time to translate into a functioning, accessible process for couples, even after a favourable ruling.

What Happens If the Restriction Is Upheld

If the Court ultimately upholds the current framework as a valid, reasonable restriction — accepting the government’s stated interests in preventing exploitation and managing broader considerations like population policy — couples facing secondary infertility without an existing child’s qualifying medical condition would continue to have no surrogacy pathway available to them under current law, and any change would then depend on legislative action by Parliament rather than judicial intervention.

Other Restrictions Worth Understanding Under the Broader Framework

This second-child restriction doesn’t exist in isolation — it sits within a broader, quite restrictive eligibility framework under the 2021 Act worth understanding for context. Surrogacy is currently available only to legally married Indian heterosexual couples, with specific age requirements — generally, the female partner between 23 and 50, and the male partner between 26 and 55 — and a minimum marriage duration requirement of five years. Single individuals, unmarried couples, and same-sex couples are currently not eligible under this framework at all, a separate and distinct set of restrictions from the second-child question specifically under review here, though reflective of the same broadly restrictive regulatory approach the 2021 Act takes overall.

How Other Countries Approach This Question

It’s worth briefly noting, for context, that India’s approach here isn’t universal — different countries handle surrogacy access very differently, reflecting their own particular balance between reproductive autonomy and regulatory caution. Some jurisdictions permit surrogacy relatively broadly, including for family-size preferences beyond a single existing child, generally alongside stronger financial and contractual regulation of the surrogacy arrangement itself, rather than restricting eligibility based on family circumstances. Others take an even more restrictive approach than India’s current framework, banning or heavily limiting surrogacy altogether regardless of medical necessity.

This comparative picture doesn’t resolve which approach is correct — reasonable countries have reached different conclusions based on their own social, legal, and ethical considerations. What it does illustrate is that India’s current second-child restriction reflects one particular policy choice among several genuinely available approaches, rather than a single, universally settled international standard. This is relevant context for understanding the case now before the Supreme Court, since the petitioners’ arguments and the government’s countervailing position both draw, at least implicitly, on this broader global range of regulatory approaches.

What This Means If You’re Currently Facing This Situation

If you’re a couple experiencing secondary infertility and considering surrogacy for a second child, here’s what’s practically relevant while this matter remains pending:

• Confirm whether your specific situation might fall within the existing medical exception, even though it’s narrow — if your existing child has a qualifying disability or life-threatening condition, this remains a genuine, currently available pathway.
• Understand that the broader restriction remains in force right now, regardless of the pending Supreme Court review — planning around a hoped-for future ruling isn’t the same as having a currently available legal option.
• Keep track of this case’s progress if it’s directly relevant to your family planning, since a final ruling, whenever it arrives, could meaningfully change the available options — this is worth discussing with a lawyer who can help you understand how any eventual ruling might apply to your specific circumstances.
• Consider other currently available options within the existing framework, including consulting with a fertility specialist about alternative treatments for secondary infertility that might not require surrogacy specifically.

Frequently Asked Questions

1. Can a married couple currently use surrogacy for a second child in India?

Generally, no — the Surrogacy (Regulation) Act, 2021, prohibits surrogacy for a second child where a couple already has a surviving child, with a narrow exception only where that existing child has a qualifying disability or life-threatening condition.

2. What is secondary infertility, and why does it matter to this case?

Secondary infertility refers to the inability to conceive again despite having previously had a successful pregnancy. The pending Supreme Court case specifically examines whether couples in this situation should have access to surrogacy, given the current law’s narrow focus on the existing child’s medical condition rather than the parents’ own infertility.

3. Has the Supreme Court already decided this case?

No. As of this writing, the Court has agreed to review the question, and the matter remains pending. The current restriction remains legally in force until a final ruling is delivered.

4. What is the existing medical exception, and how does it work?

It applies where a couple’s existing child has a mental or physical disability, or a life-threatening condition without a permanent cure. Couples in this situation can seek surrogacy for another child by obtaining a medical certificate from a District Medical Board and approval from the relevant authority.

5. Why does the current law restrict surrogacy this way?

The restriction reflects the 2021 Act’s broader goal of preventing commercialisation and exploitation of surrogacy, and, as raised during the Court’s hearing, may also reflect population policy considerations, according to observations made during arguments.

6. Are single people or same-sex couples eligible for surrogacy in India?

No. The current framework restricts eligibility to legally married Indian heterosexual couples meeting specific age and marriage-duration requirements — a separate restriction from the second-child question specifically under review.

7. Is commercial surrogacy legal in India?

No. Only altruistic surrogacy is permitted under the 2021 Act. Commercial surrogacy remains banned and is punishable with imprisonment of up to ten years and significant fines.

8. What should I do if I’m facing secondary infertility and considering surrogacy right now?

Confirm whether your situation might fall within the existing narrow medical exception, understand that the broader restriction remains in force pending the Court’s final decision, and discuss your specific circumstances with both a fertility specialist and a lawyer familiar with this evolving area of law.

9. Does this case affect couples pursuing IVF or other fertility treatments, or only surrogacy specifically?

This particular challenge is focused on surrogacy access. That said, the petitioners’ argument draws on a connected definition of “infertility” shared with the Assisted Reproductive Technology Act, so the reasoning could potentially have some bearing on how that related framework is interpreted too, depending on how the Court ultimately decides the case.

10. If the Supreme Court rules in favour of the petitioners, would the change apply immediately to all similar cases?

This would depend on how the Court frames its ruling — whether it reads a broader interpretation directly into the existing law, taking effect immediately, or instead directs Parliament to amend the provision, which would require subsequent legislative action before any practical change takes effect.

Disclaimer: This article is for general informational purposes only and does not constitute legal or medical advice. It presents the current legal status and pending arguments in this matter factually and does not advocate for any particular outcome. Every case is fact-specific — consult a qualified advocate regarding your specific circumstances before taking any legal action.

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