On Thursday, the Supreme Court held that couples who had initiated the surrogacy process prior to the enactment of the Surrogacy (Regulation) Act, 2021 can continue with surrogacy even if they exceed the age limits prescribed under Section 4(iii)(c)(I) of the law. The Act stipulates that intending mothers must be between 23 and 50 years of age, and fathers between 26 and 55 years. The Court emphasized that the age restrictions cannot be applied retrospectively to couples who had already taken substantive steps toward surrogacy before the law came into force.
The cases before the Supreme Court involved couples who had frozen embryos under previous regulations, prior to January 25, 2022, when the Surrogacy (Regulation) Act came into effect. These couples sought eligibility certificates to proceed with surrogacy despite exceeding the age limits under the new Act. The matter focused on whether such couples could continue with the process initiated earlier, without being affected by the statutory restrictions introduced by the 2021 legislation.
The petitioners argued that their right to reproductive autonomy and parenthood crystallized when they had their embryos frozen, and that all substantial steps to undertake surrogacy had been completed prior to the law’s enforcement. The Union Government, represented by Additional Solicitor General Aishwarya Bhati, contended that the age limits were grounded in biological considerations, genetic quality of gametes, and child welfare concerns, citing instances where intending parents were well beyond the statutory age. The Union also submitted that legal rights under the Act arise only when embryos are implanted in the surrogate’s uterus.
The bench, comprising Justice BV Nagarathna and Justice KV Viswanathan, clarified that the commencement of surrogacy occurs when gametes are extracted and embryos frozen, as all significant steps to realize the intention of surrogacy have been completed at that stage. Justice Nagarathna highlighted that the purpose of the Act was to regulate commercial surrogacy, not to prevent genuine couples from having children through legitimate surrogacy arrangements.
The Court further noted that imposing an age bar on intending parents is inconsistent with the absence of age restrictions for natural conception and adoption, observing, "While an age restriction for a surrogate mother may be justifiable, the same reasoning cannot be extended to intending parents, especially when older couples are legally permitted to adopt children."
The Court rejected arguments supporting retrospective application of age limits, emphasizing that it is not the State’s role to assess the suitability of intending parents purely based on age.
The Top Court held that couples who had begun the surrogacy process prior to the enforcement of the Surrogacy (Regulation) Act, 2021 may continue with surrogacy irrespective of the statutory age limit. The judgment is limited to such couples, and those in similar situations are directed to approach the relevant High Courts to seek appropriate relief in line with this ruling. The Court reserved broader questions related to other provisions of the Act and the Assisted Reproductive Technology (Regulation) Act, 2021, including restrictions on marital status, number of surviving children, and commercial surrogacy, for separate adjudication.
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