Age bar under Surrogacy Act not applicable to couples who started process before 2021 law came into force: SC

Couples who began their surrogacy process before the enactment of the surrogacy law can proceed with surrogacy despite being over the age limit set by the law, the Supreme Court ruled on Thursday.

“We have held that if the surrogacy process has begun before the Act and they had frozen embryos or were in the process of transferring embryos to a surrogate mother — in that case, the age restriction will not apply,” a Bench of Justice BV Nagarathna and Justice KV Viswanathan said, allowing petitions filed by three couples.

If any other similarly placed couple wished to avail remedies in terms of this judgment, such a couple may approach the high court concerned to seek appropriate orders, Justice Nagarathna said, pronouncing the verdict.

Section 4(iii)(I) of the Surrogacy (Regulation) Act, 2021 prescribes that legally the woman must be between 23 and 50 years of age and her husband between 26 and 55 years in order to avail benefits of surrogacy.

The Bench said the right to surrogacy of such couples crystallised when they had their embryos frozen under the law prevailing at that time and the age restriction under the Act cannot apply retrospectively to such couples.

Before the Surrogacy Act came into force, there was no age limit as a part of reproductive autonomy and parenthood, said the Bench which had reserved its order on the contentious issue on July 29.

While dealing with cases concerning grant of eligibility certificates under the Surrogacy Act to three couples, the Bench had decided that if a couple who had frozen embryos before the Surrogacy (Regulation) Act, 2021, came into force on January 25, 2022, could proceed with surrogacy despite exceeding the upper age limit prescribed under the Act.

The top court said the commencement of surrogacy meant that the gametes had been extracted and the embryo had been frozen, and there was nothing for the couple themselves to do, as the next step was to transplant the embryo to the surrogate mother.

By this stage, the intending couple has taken all substantial steps to crystallise their intention to undergo surrogacy, it clarified.

Rejecting the Centre’s argument for retrospective application of age limit, the top court said it’s not the State’s job to decide the suitability of parents as there’s no age bar on couples who wished to have children naturally.

The Bench, however, clarified that its observations were limited to couples who initiated the process before the law was enacted, and have sought to continue the process.

In his separate but concurring judgment, Justice Viswanathan said, “The petitioners had exercised the liberty (to have a child by surrogacy) when there was no disability (including age restrictions) as such. It was only after the process that the age bar and marriage restriction were introduced.”