Recently, the Gauhati High Court declined to grant relief to a married couple seeking permission to pursue surrogacy after crossing the statutory age limit, holding that the right to reproductive autonomy under Article 21, though constitutionally protected, is not absolute and must yield to reasonable statutory regulation. The ruling was delivered in a writ petition filed under Article 226 of the Constitution challenging the refusal of authorities to permit surrogacy under the Surrogacy (Regulation) Act, 2021, where the Court emphatically observed that “individual hardship, however genuine, cannot dilute a legislative policy framed in the larger public interest.”
Brief Fact:
The case arose from the plight of a married couple suffering from medically certified infertility, rendering natural conception impossible. After undergoing prolonged medical treatment, including IVF procedures that failed to result in pregnancy, the couple opted for surrogacy, for which the semen of the husband was collected. During this process, the Surrogacy (Regulation) Act, 2021 came into force on 25 December 2021, introducing a mandatory regulatory framework requiring permissions and certifications from designated authorities, including the “Appropriate Authority” under Section 35.
However, at the relevant time, such authorities had not been constituted in the State of Assam, creating a regulatory vacuum. Compelled by this situation, the petitioners approached the Gauhati High Court, which on 23 January 2023disposed of their petition by granting liberty to pursue surrogacy in another State. Acting on this liberty, the petitioners again attempted surrogacy on 1 February 2023, but the procedure failed for medical reasons.
Subsequently, the Central Government issued a notification dated 14 March 2023, amending Form No. 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, restricting the use of donor sperm for married couples. In the intervening period, the petitioners also crossed the upper age limit prescribed under Section 4(iii)(b)(I) of the Act. When they later sought fresh permission to initiate surrogacy, the authorities rejected their request citing age ineligibility and non-compliance with the amended Form No. 2, prompting the present writ petition.
Contentions for the Petitioner:
Counsel for the petitioners contended that the refusal to permit surrogacy violated Articles 14 and 21 of the Constitution, asserting that reproductive autonomy and the right to parenthood are intrinsic to personal liberty and human dignity. It was argued that the petitioners were fully eligible at the time of their initial surrogacy attempt, which failed due to circumstances beyond their control, and that subsequent statutory amendments could not extinguish their right to parenthood.
The amendment dated 14 March 2023 to Form No. 2 was assailed as arbitrary and discriminatory, particularly because it permitted donor gametes for certain categories of single women while denying the same to married couples. The petitioners further alleged retrospective application of the amendment and invoked the doctrine of legitimate expectation, relying on Vijaya Kumari S. v. Union of India, to contend that their accrued rights could not be defeated by subsequent policy changes.
Contentions for the Respondent:
The respondents, on the other hand, submitted that the right to reproductive autonomy is subject to reasonable statutory restrictions and cannot override a clear legislative mandate. Emphasising that the Surrogacy (Regulation) Act, 2021 is a comprehensive code enacted in the public interest, it was argued that age-based eligibility conditions and restrictions on donor gametes represent valid policy choices with a rational nexus to child welfare, genetic linkage, and ethical considerations. The respondents maintained that eligibility must be assessed on the date when the benefit is claimed and that no vested right or legitimate expectation can arise contrary to an express statutory provision.
Observations of the Court:
The High Court undertook a detailed constitutional and statutory analysis, acknowledging at the outset that the right to make reproductive choices and decisions relating to parenthood forms part of personal liberty under Article 21. However, the Court was categorical in holding that such a right is “not absolute and is subject to reasonable restrictions imposed by law.” Examining the scheme of the Surrogacy (Regulation) Act, 2021, the Court noted that the legislation was enacted after extensive deliberation to address ethical concerns, prevent exploitation of surrogate mothers, and safeguard the welfare of children, thereby warranting substantial judicial deference. Upholding the age-based eligibility condition under Section 4(iii)(b)(I), the Court held that it constitutes a valid classification with a rational nexus to legitimate objectives such as parental capacity, health, longevity, and long-term child welfare.
Rejecting the petitioners’ plea that eligibility should be assessed with reference to an earlier failed attempt, the Court observed that “statutory conditions must be satisfied on the date the benefit is claimed,” and that a failed surrogacy attempt does not create any vested or continuing right. The doctrine of legitimate expectation was also held inapplicable, with the Court stating that it “cannot operate against an express statutory mandate.”
Addressing the amendment to Form No. 2 under Rule 7, the Court upheld the restriction on donor gametes for married couples as a conscious policy decision aimed at ensuring genetic linkage, clarifying that “a judicial direction cannot be construed as overriding or rewriting legislative policy.” Applying the proportionality test, the Court concluded that the impugned measures pursued legitimate State interests, bore a rational nexus with the object of the legislation, and were neither arbitrary nor excessive.
The decision of the Court:
In conclusion, the Gauhati High Court dismissed the writ petition as devoid of merit, upholding the constitutional validity of the relevant provisions of the Surrogacy (Regulation) Act, 2021 and the corresponding Rules, and made no order as to costs. The core ratio of the judgment lies in reaffirming that while reproductive autonomy is constitutionally protected, statutory eligibility conditions framed in the public interest must prevail over individual hardship, and that a failed surrogacy attempt does not confer any vested or continuing right against a clear legislative policy.
Case Title: Seema Chakraborty & Anr. v. Union of India & Ors.
Case No.: Writ Petition (Civil) No. 7348 of 2023
Coram: Chief Justice Ashutosh Kumar, Justice Arun Dev Choudhury
Advocate for Petitioner: Adv. A. Ahmed
Advocate for Respondent: Adv. A. Gayan, R. B. Bora
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