In a landmark ruling on Thursday, the Supreme Court struck down the retrospective enforcement of age limits under India’s Surrogacy (Regulation) Act, offering relief to couples who had frozen their embryos before the law came into force on January 25, 2022.
The bench of Justices B V Nagarathna and K V Viswanathan allowed three couples in their 50s and 60s to proceed with surrogacy, challenging the Centre’s refusal to let them move forward due to age restrictions.
“In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy... It is not for the State to question the couple's ability to parent children after they had begun the exercise of surrogacy when there were no restrictions on them to do so,” the court said.
The Surrogacy Act prescribes age limits for intending parents and surrogate mothers: the intending mother must be between 23 and 50, the father between 26 and 55, and the surrogate between 25 and 35, with additional conditions. Single women who are widowed or divorced can pursue surrogacy between 35 and 45.
But the court questioned the rationale behind these restrictions.
“Thus, prior to the enforcement of the Act, the right to pursue surrogacy despite one's age did not impinge on any of the above considerations and was solely in the decision-making domain of the intending couple. It was a personal decision, with personal consequences. Although the Union of India has argued that age-limits are directly related to the welfare of children, as explained above, we are unable to accept this submission in view of the unlimited freedom afforded to couples who wish to conceive children naturally, irrespective of their age,” the bench said.
Clarifying the scope of its judgment, the court noted that it was not questioning Parliament’s prescription of age limits, but only addressing cases where surrogacy processes had begun before the Act’s enforcement.
“Thus, if an intending couple had — (i) commenced the surrogacy procedure prior to the commencement of the Act; (ii) were at the stage of creation of embryos and freezing after extraction of gametes; (iii) and on the threshold of transfer of embryos to the uterus of the surrogate mother, the age restriction under Section 4(iii)(c)(I) of the Act would not apply,” the court added.
Centre had argued that age restrictions should apply retrospectively to prevent potential harm arising from the declining quality of gametes with age.
Supreme Court rejected this, noting that natural conception and adoption are not subject to similar age bars.
“On the basis of concerns over gamete quality, the law does not fetter couples who wish to bear children naturally. Moreover, there is no age bar for couples who wish to adopt children under the provisions of the Hindu Adoptions and Maintenance Act, 1956, which personal law applies to the intending couples herein,” the bench said.
(With ToI inputs)
The bench of Justices B V Nagarathna and K V Viswanathan allowed three couples in their 50s and 60s to proceed with surrogacy, challenging the Centre’s refusal to let them move forward due to age restrictions.
“In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy... It is not for the State to question the couple's ability to parent children after they had begun the exercise of surrogacy when there were no restrictions on them to do so,” the court said.
The Surrogacy Act prescribes age limits for intending parents and surrogate mothers: the intending mother must be between 23 and 50, the father between 26 and 55, and the surrogate between 25 and 35, with additional conditions. Single women who are widowed or divorced can pursue surrogacy between 35 and 45.
But the court questioned the rationale behind these restrictions.
“Thus, prior to the enforcement of the Act, the right to pursue surrogacy despite one's age did not impinge on any of the above considerations and was solely in the decision-making domain of the intending couple. It was a personal decision, with personal consequences. Although the Union of India has argued that age-limits are directly related to the welfare of children, as explained above, we are unable to accept this submission in view of the unlimited freedom afforded to couples who wish to conceive children naturally, irrespective of their age,” the bench said.
Clarifying the scope of its judgment, the court noted that it was not questioning Parliament’s prescription of age limits, but only addressing cases where surrogacy processes had begun before the Act’s enforcement.
“Thus, if an intending couple had — (i) commenced the surrogacy procedure prior to the commencement of the Act; (ii) were at the stage of creation of embryos and freezing after extraction of gametes; (iii) and on the threshold of transfer of embryos to the uterus of the surrogate mother, the age restriction under Section 4(iii)(c)(I) of the Act would not apply,” the court added.
Centre had argued that age restrictions should apply retrospectively to prevent potential harm arising from the declining quality of gametes with age.
Supreme Court rejected this, noting that natural conception and adoption are not subject to similar age bars.
“On the basis of concerns over gamete quality, the law does not fetter couples who wish to bear children naturally. Moreover, there is no age bar for couples who wish to adopt children under the provisions of the Hindu Adoptions and Maintenance Act, 1956, which personal law applies to the intending couples herein,” the bench said.
(With ToI inputs)
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