Delimitation Fears Voiced by SC Judge During Surrogacy Petitions: A Confluence of Demographic Concerns and Reproductive Rights

New Delhi – In a notable instance of judicial commentary extending beyond the immediate scope of a case, Justice BVNagarathna of the Supreme Court of India on Friday, May 9, articulated significant apprehensions regarding the potential impact of population-based delimitation on the parliamentary representation of Southern Indian states. These observations arose unexpectedly during a hearing of petitions challenging certain restrictive provisions of the Surrogacy (Regulation) Act, 2021, and its associated Rules.

The Bench, also comprising Justice Satish Chandra Sharma , was addressing a batch of writ petitions (W.P.(C) No. 446/2025 and W.P.(C) No. 442/2025) filed by couples seeking to have a second child through surrogacy, despite already having a healthy biological child. This practice is currently restricted under the Surrogacy (Regulation) Rules, 2022. Justice Nagarathna ’s remarks connected the petitioners' desire for larger families with broader national demographic trends and their potential ramifications for India's federal structure and electoral representation.

The Surrogacy Petitions: Challenging Restrictions on Family Expansion

The core legal challenge in the courtroom pertained to Rule 4(iii)(c)(II) of the Surrogacy (Regulation) Rules, 2022. This rule effectively disallows couples from opting for surrogacy for a second child if their first child is alive and healthy. The petitioners, represented by Advocate Mohini Priya , argued that their circumstances fell within the permissible grounds for gestational surrogacy under Rule 14 of the same Rules. Rule 14 allows for gestational surrogacy if a woman suffers from life-threatening medical conditions, if the intended parents have failed to conceive despite attempts, or if the woman has experienced multiple pregnancy losses, among other criteria.

Advocate Priya submitted that both petitioning couples had attempted In-vitro Fertilisation (IVF) without success and genuinely wished to expand their families. She emphasized that the couples, who both have young daughters, were making a personal choice in the best interest of their existing child and their family unit.

Judicial Scrutiny: Surrogacy, Family Size, and "Fashion"

Justice Nagarathna engaged counsel with pointed questions regarding the motivations behind seeking a second child via surrogacy when a healthy biological child already existed. "If you have one child, why bring in another child. Look at the larger country's interest," she remarked, highlighting concerns about India's burgeoning population.

The judge also expressed concern that surrogacy might be perceived as a "fashion," citing instances of celebrities opting for multiple children through surrogacy. "It should not become a fashion...Everybody wants to be one now. Nobody wants another," Justice Nagarathna observed, perhaps alluding to a societal trend towards smaller families or single-child norms, yet contrasting it with the petitioners' desires.

Advocate Priya countered these observations by stating, "There are few people who still want to expand their family..." She also had to clarify a query from the Bench regarding an alleged sex-selective abortion by one of the petitioners. Priya firmly denied this, stating, "Mylords, there was no abortion in this case. She had to terminate the child because there was a life-threatening disorder that she suffered from. We have the doctor's recommendation. First child was born in 2016 and for eight years they have been trying another child. There is a genuine medical problem." She also reminded the Court that sex determination is illegal in India.

The Pivot to Delimitation: A Looming Constitutional Apprehension

It was in this context of discussing family size and population growth that Justice Nagarathna introduced her concerns about parliamentary delimitation. She noted the contrasting demographic trends between Northern and Southern India.

"In South you see, the families are shrinking. Births are coming down in South India," Justice Nagarathna stated. "There are so many people in the North who are going on and on having children... There is an apprehension now if they have Delimitation based on population, the number of representatives of the South will be reduced because of the population of North India."

This statement underscores a growing anxiety, particularly in the Southern states, which have been more successful in implementing family planning measures and have consequently seen lower population growth rates compared to several Northern states. The next delimitation exercise, which will redraw constituency boundaries and potentially reallocate the number of seats based on updated population figures, is constitutionally mandated to occur after the first census post-2026.

When Advocate Priya drew a parallel with China , where a drastic decrease in birth rates led the government to promote a two-child policy, Justice Nagarathna dismissed the comparison for India. "That won't happen in India," she asserted, reiterating her point about the differing population dynamics within the country and the consequent fear of reduced Southern representation.

Legal and Constitutional Context: Delimitation in India

Delimitation, in the Indian context, refers to the act or process of fixing limits or boundaries of territorial constituencies in a country or a province having a legislative body. The process is crucial for ensuring the principle of "one person, one vote, one value."

Constitutional Basis: Article 82 of the Constitution of India mandates the readjustment of allocation of seats in the House of the People (Lok Sabha) to the States and the division of each State into territorial constituencies after every census. A similar provision, Article 170, exists for Legislative Assemblies in the States.

Delimitation Commissions: The task is assigned to a high-power body known as the Delimitation Commission, whose orders have the force of law and cannot be called in question before any court.

Historical Freezes: Delimitation based on population figures has been frozen multiple times in India. The 42nd Amendment Act of 1976 froze the allocation of seats in the Lok Sabha to the states and the total number of seats in Legislative Assemblies until the year 2000. This was done primarily to allay fears that states which had successfully implemented family planning programs would lose representation. The 84th Amendment Act in 2001 extended this freeze until the first census taken after the year 2026.

The 2026 Prospect: While the total number of seats for states in Parliament is frozen until after 2026, the 87th Amendment Act of 2003 provided for the readjustment and rationalization of territorial constituencies within states, including those for Scheduled Castes and Scheduled Tribes, based on the 2001 census figures, without altering the total number of seats allocated to each state in the Lok Sabha. The next major delimitation, which could alter the number of Lok Sabha seats per state, is anticipated based on the census conducted after 2026. Justice Nagarathna 's apprehension directly relates to this forthcoming exercise.

The Surrogacy (Regulation) Act, 2021: Aims and Contentions

The Surrogacy (Regulation) Act, 2021, along with the Assisted Reproductive Technology (Regulation) Act, 2021, was enacted to regulate surrogacy and other assisted reproductive technologies in India, primarily to prevent the commercialization of surrogacy and protect the rights of surrogate mothers and children born through surrogacy.

Key features and restrictions include:

* Altruistic Surrogacy: Only altruistic surrogacy is permitted, where the surrogate mother receives no monetary compensation beyond medical expenses and insurance coverage.

* Eligibility Criteria for Intending Couples: Includes being Indian citizens, married for at least five years, with the wife aged between 23-50 years and the husband between 26-55 years. They should not have any surviving child (biologically, adopted, or through surrogacy), with exceptions for children with life-threatening conditions or disabilities. This latter provision, particularly Rule 4(iii)(c)(II) of the 2022 Rules, is what the petitioners were challenging for seeking a second child.

* Eligibility for Surrogate Mother: Must be a close relative, married, have at least one child of her own, and be between 25-35 years old. She can be a surrogate only once.

The Act has faced numerous challenges on grounds of violating fundamental rights, including the right to reproductive autonomy, privacy, and equality. The specific restriction on having a second child through surrogacy if the first is healthy is seen by critics as an undue state interference in personal family planning decisions, especially when medical conditions necessitate surrogacy.

Analyzing the Judicial Discourse: Obiter Dicta and Policy Implications

Justice Nagarathna 's remarks on delimitation, while not directly forming the ratio decidendi of the surrogacy case, constitute significant obiter dicta. Such observations from Supreme Court judges, even if not legally binding precedents for the issue discussed, often carry substantial weight and can influence public discourse, policy debates, and future judicial considerations.

The intersection of population policy, individual reproductive rights, and constitutional representation is a complex and sensitive area. The judge's comments reflect a utilitarian perspective ("look at the larger country's interest") which, while relevant in policy-making, must be carefully balanced against fundamental rights to make personal life choices, including family size and the means of procreation.

Her comments on surrogacy becoming a "fashion" also touch upon societal perceptions and the ethical considerations surrounding ARTs. However, for couples facing genuine medical infertility or risks, surrogacy represents a vital path to parenthood, a distinction Advocate Priya sought to emphasize.

Implications for Southern States and Surrogacy Regulation

The apprehension voiced by Justice Nagarathna regarding delimitation is not new; it has been a recurring theme in political and academic circles in Southern India. States like Tamil Nadu, Kerala, Karnataka, Andhra Pradesh, and Telangana have achieved significant demographic transitions, leading to fears that their reduced population share could translate into diminished political influence at the national level if strict population criteria are applied in the next delimitation. This could impact resource allocation, federal financial transfers, and overall policy-making.

Simultaneously, the judicial scrutiny applied to the Surrogacy Act's provisions in this and other cases will continue to shape its implementation and potentially lead to further amendments or clarifications. The balance between regulating the practice to prevent exploitation and ensuring access for those with genuine needs remains a critical challenge.

Court’s Order and Future Path

In the present matter, the Supreme Court did not issue a formal notice. Instead, it tagged W.P.(C) No. 446/2025 and W.P.(C) No. 442/2025 with another pending writ petition, W.P.(C) No. 238/2024, which also challenges Rule 4(iii)(c)(II) of the Surrogacy (Regulation) Rules, 2022. This consolidation suggests that the Court intends to hear these related challenges together, allowing for a comprehensive examination of the contentious rule.

Conclusion: A Microcosm of Macro Concerns

The proceedings on May 9 served as a fascinating microcosm of how specific legal challenges can open avenues for judicial reflection on broader national issues. Justice Nagarathna 's observations, linking personal choices in family building under the Surrogacy Act to the macro-level constitutional concern of equitable parliamentary representation post-delimitation, highlight the interconnectedness of law, society, and governance.

While the immediate legal battle revolves around the interpretation and validity of surrogacy regulations, the remarks have reignited an important debate about the future of India's federal balance and the principles underpinning democratic representation. For legal professionals, this confluence underscores the dynamic nature of constitutional interpretation and the judiciary's role in flagging societal and systemic concerns that extend beyond the facts of a single case. The eventual outcome of the challenges to the Surrogacy Rules, and the continuing national dialogue on delimitation, will be keenly watched.