Surrogacy in India: Rules, Eligibility & the Debate on a “Second Child”
- Sunil Khattri
- 5 minutes ago
- 3 min read
Surrogacy laws in India are designed to protect all parties involved, the intended parents, the surrogate mother, and the child. With the Surrogacy (Regulation) Act, 2021 in force, only altruistic surrogacy (where the surrogate isn’t paid beyond medical costs and insurance) is permitted. This legal framework aims to prevent exploitation while providing a regulated pathway to parenthood for those who cannot conceive naturally.
In this context, it’s important to understand who can be a surrogate, what the eligibility criteria are, and what the rules say about having a second child through surrogacy, a topic currently under judicial review in India.
Who Can Be a Surrogate Mother Under Indian Law?
According to Rule 7 of the Surrogacy (Regulation) Rules, 2022, the surrogate must:
Be between 25 and 35 years of age.
Be married, with at least one biological child of her own.
Not have been a surrogate more than once in her lifetime.
Undergo mandatory medical and psychological evaluations before being approved.
These rules are designed to ensure that the surrogate understands the emotional and physical implications of the process and is capable of making informed decisions.
The Restriction on Second Child: What Does the Law Say?
Section 4(iii)(C)(II) of the Surrogacy Act states that couples are not eligible for surrogacy if they already have one surviving child (biological, adopted, or through previous surrogacy).
Exceptions are made only if:
The existing child has a life-threatening disease,
Or suffers from a severe physical or mental disability as certified by a medical board.
This provision, though well-intended, has created challenges for couples with secondary infertility or those who desire a second child for personal or familial reasons.
Understanding Why This Rule Exists
The restriction on surrogacy for a second child is grounded in a few key policy goals:
Ethical Safeguards: The law seeks to balance the desires of intended parents with the health and well‑being of surrogate mothers.
Preventing Commercialisation: By limiting repeat use of surrogacy, the Act discourages commodification of pregnancy and prioritises altruistic arrangements.
Population Concerns: During court hearings, the government argued that flexible surrogacy policies should align with broader public policy objectives, including population management.
Critics argue that the restriction may be too rigid for those suffering from secondary infertility, especially where medical conditions prevent a natural pregnancy after a first child. This is a core issue before the Supreme Court.
What the Supreme Court Says: Recent Case
Supreme Court to Review Ban on Surrogacy for a Second Child (2025)
In Nov 2025, the Supreme Court agreed to examine whether the provision in the Surrogacy (Regulation) Act, 2021 banning married couples with one surviving child from opting for surrogacy for a second child violates citizens’ constitutional rights, especially reproductive autonomy and personal liberty under Article 21.
The Court’s decision will have important implications for couples facing secondary infertility.
Challenges to the Second‑Child Ban (Ongoing Petitions)
Several petitions have been filed in the Supreme Court challenging the constitutional validity of the second‑child restriction on surrogacy. Petitioners argue that the ban interferes with reproductive choice and personal liberty, and fails to recognise secondary infertility, when a couple who already has a child cannot conceive a second naturally.
The Court is actively considering these arguments, potentially reshaping how the surrogacy law applies to such couples.
Why These Cases Matter
They reflect a shift from a rigid, one-size-fits-all rule toward a more case-by-case interpretation based on medical realities and personal rights.
They give hope to couples facing complex fertility journeys who may have been previously disqualified due to outdated assumptions in the law.
They also reflect growing judicial empathy in ART and surrogacy matters.
What This Means for Couples Today
If you’re considering surrogacy in India:
Understand eligibility criteria thoroughly, especially regarding your existing child status and medical certification requirements.
Consult a specialist legal practitioner early in the process, especially if your situation involves secondary infertility or other unique circumstances.
Keep updated with ongoing judicial developments as the Supreme Court’s review could influence future policy and practice.
Final words
India’s surrogacy law aims to strike a careful balance between enabling parenthood through altruistic surrogacy and protecting surrogate mothers from exploitation. The eligibility rules for surrogate mothers, age limits, previous childbirth, marital status and altruistic conditions, reflect this dual focus.
The restriction on surrogacy for a second child, while designed to uphold ethical safeguards, is now being examined by the Supreme Court in light of reproductive autonomy and secondary infertility. This ongoing review highlights how laws may evolve as societal and medical realities shift.
Stay informed and consult legal expertise to understand how these rules may apply in your specific situation.
The Author :
Dr. Sunil Khattri
+91 9811618704
Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.