DAW 7th November 2025, Mains Answer Writting 2026
Question
Discuss the constitutional validity of restricting access to surrogacy in light of Article 21 of the Indian Constitution, which encompasses the right to privacy and reproductive choices. (250 Words, 15 Marks).
Model Answer
Approach:
Introduction:
Act 2021: Altruistic surrogacy only; bans commercial.
Issue: Sec 4(iii)(C)(II)- no surrogacy if existing child.
Concern: Violates Art 21- privacy, dignity, reproductive autonomy.
Body:
Constitutional Dimension:
Art 21: Life = personal liberty + decisional autonomy (Puttaswamy 2017).
Reproductive choice: liberty + bodily integrity (Suchita Srivastava 2009).
Arguments Challenging the Restriction
Arguments Supporting the Restriction
Balancing Test
Must be just, fair, reasonable.
Fair & balanced law
Way Forward: Broaden eligibility, Clarify “close relative", Compensated altruism and Continuous review & oversight.
Conclusion:
Need inclusive, rights-based, ethical regulation ensuring privacy + dignity + autonomy under Art 21.
Introduction:
The Surrogacy (Regulation) Act, 2021 seeks to regulate surrogacy in India by allowing only altruistic surrogacy and prohibiting commercial surrogacy. However, provisions such as Section 4(iii)(C)(II)—which restricts surrogacy to couples without a surviving child- have raised questions about their constitutional validity in light of Article 21, which guarantees the right to privacy, dignity, and reproductive autonomy.
Body:
Constitutional Dimension of Reproductive Rights:
Reproductive Choice as Fundamental Right: Earlier judgments, such as Suchita Srivastava v. Chandigarh Administration (2009), recognized reproductive freedom- to conceive, bear, or not bear a child- as integral to personal liberty and bodily integrity. It includes:
the right to procreate or not to procreate
the right to carry pregnancy to its full term or to terminate it, and
the right to use assisted reproductive technologies (ARTs) such as IVF or surrogacy
Article 21 – Right to Life and Personal Liberty:
In K.S. Puttaswamy v. Union of India (2017), the Supreme Court held that the right to privacy includes decisional autonomy over intimate matters, such as reproduction, contraception, and family planning.
Thus, access to surrogacy, being a legitimate form of reproduction for medically infertile couples, falls within the broader ambit of reproductive autonomy under Article 21.
Arguments Challenging the Restriction:
Violation of Privacy and Autonomy:
Deciding the number of children and the means of reproduction are private matters; state interference violates Puttaswamy’s privacy framework.
Arbitrary Classification (Article 14):
Differentiating between couples with or without a child disregards medical realities of infertility and lacks a rational nexus with preventing exploitation.
Disproportionate Restriction:
The blanket prohibition on secondary infertility cases exceeds the legislative purpose of curbing commercial surrogacy and fails the test of proportionality laid down in Modern Dental College v. State of MP (2016).
Exclusionary Effect:
Only married Indian couples and widows/divorcees (aged 35-45) can opt for altruistic surrogacy (section 2(h), 2(s), 4(c)). It made Exclusion of single men, LGBTQ+ individuals, and live-in partners from accessing surrogacy limits reproductive choice.
Thus it violates equality (Article 14) and personal liberty (Article 21) by imposing heteronormative and marital conditions on parenthood
Arguments Supporting the Restriction:
Preventing Exploitation:
Restricting surrogacy to first-time parents ensures it remains a medical recourse, not a lifestyle choice.
Ethical Safeguards:
Since surrogacy involves another woman’s body, the state can impose reasonable regulations to preserve dignity and prevent commodification.
Public Interest Regulation:
The restriction aligns with the state’s obligation to balance individual rights with societal morality and women’s welfare.
Balancing Liberty and Regulation:
The constitutional question lies in balancing reproductive autonomy with state’s duty to prevent exploitation. Under Article 21, restrictions on personal liberty must be:
Just, fair, and reasonable, and
Fair and Balanced Law.
If the law’s goal is to ensure ethical surrogacy and not to limit family size, then stopping couples with secondary infertility from using surrogacy is too broad and may violate the Constitution.
Way Forward:
Broaden Eligibility: Include single parents, LGBTQ+ persons, and secondary infertility cases under regulated conditions.
Define “Close Relative” Clause Clearly: To avoid coercion and ensure genuine consent.
Compensated Altruism: Allow limited compensation to safeguard surrogates’ welfare without commercializing the process.
Continuous Legal Review: Laws must evolve with medical technology and changing social realities to uphold both ethics and autonomy.
Conclusion:
While the Surrogacy (Regulation) Act, 2021 embodies a legitimate state interest in preventing exploitation, its restrictive provisions risk infringing reproductive liberty under Article 21. A constitutionally sound approach must balance ethical oversight with inclusivity, ensuring that reproductive rights remain a part of personal dignity, privacy, and autonomy in a progressive constitutional democracy.