SC On Surrogacy Law: “Age Bar Won’t Apply If Procedure Started Before Jan 25, 2022”

Surrogacy Law

The Supreme Court on Thursday ruled that couples who had initiated the surrogacy process before the enactment of the Surrogacy (Regulation) Act, 2021, can proceed with the procedure even if they have now crossed the statutory age limit prescribed under Section 4(iii)(c)(I) of the law.

The Act specifies that the woman must be between 23 & 50 years, and the man between 26 & 55 years to be eligible for surrogacy.

A bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan held that the right to surrogacy of such couples had “crystallised” once they had their embryos frozen under the legal framework prevailing before the Act came into effect, when there was no age restriction.

The Court said that the age limit under the new law can’t apply retrospectively, as doing so would infringe upon the couple’s reproductive autonomy and their right to parenthood.

When Does Surrogacy “Commence”?

Clarifying what constitutes the commencement of surrogacy, the bench said the process begins once the gametes are extracted and the embryo is frozen, marking the couple’s full intention to pursue surrogacy.

“There is no additional step to be undertaken by the couple themselves. All subsequent steps would involve only the surrogate mother,” the bench observed.

It further stated that by this stage, the intending couple has already taken all substantial steps to realise their decision to have a child through surrogacy.

‘State Can’t Decide Who Is Fit To Parent’

Rejecting the Union government’s argument that age limits ensure “suitability” of parents, the Court said the state cannot question a couple’s ability to raise children, especially since no such limits exist for natural conception.

“It is not for the state to question the couple’s ability to parent children after they had begun the surrogacy process when there were no restrictions,” the Court noted.

It added that while concerns over parenting or gamete quality may be valid for lawmakers, they do not justify the retrospective application of the Act.

Limited To Pre-Act Cases

The Court clarified that its observations are confined to couples who had initiated the surrogacy process before the Act’s enforcement and do not question Parliament’s legislative wisdom.

The judgment was delivered in 3 cases relating to the grant of eligibility certificates under the Surrogacy Act. The bench added that similarly placed couples could approach their respective High Courts to seek relief in line with this ruling.

The order, which had been reserved on July 29, settles the issue for couples who had frozen embryos before January 25, 2022, when the Act came into force.