Surrogacy age limit will not apply to couples who had begun the process before Act came into force: Supreme Court

The court said, “Thus, if an intending couple had – (i) commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and (ii) were at the stage of creation of embryos and freezing after extraction of gametes… and (iii) 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.”

Section 4(iii)(c)(I) says that on and from the date of commencement of the Act, an intending couple requires an eligibility certificate issued by the appropriate authority certifying that they are married and are between the age of 23 and 50 years in case of women and 26 to 55 years in case of men on the day of certification.

The court was dealing with the pleas of three couples who had contended that they had commenced the surrogacy procedures prior to the enforcement of the Act. They said that when they were in the midst of procedure, the Act brought in an embargo in the form of the age limit, consequently barring them from continuing the surrogacy procedure.

The bench pointed out that “in recent jurisprudence, the Supreme Court has often recognised that ‘reproductive autonomy’ is part of the constellation of rights afforded to all people under Article 21 of the Constitution. The 228th Report of the Law Commission of India, opined that ‘if reproductive right gets constitutional protection, surrogacy, which allows an infertile couple to exercise that right, also gets the same constitutional protection’.”

The SC said, “Indeed, before the enforcement of the Act in the year 2022…this was the case. The choice of a couple, medically incapable of conceiving/bearing children naturally, to pursue surrogacy procedures to procreate in the absence of binding regulations was but an exercise of their decisional and reproductive autonomy. The Act has the object of regulating surrogacy so as to protect it from commercial exploitation. The object of the Act is not to frustrate the rights of intending couples who are otherwise eligible to undertake surrogacy procedures.”

The judgment pointed out that the three petitioners ”had exercised this decisional autonomy and commenced the process of surrogacy to the extent of freezing their embryos in preparation for transfer to the womb of the surrogate mother.”

It said that “at the time that intending couple Nos.1 to 3…generated and froze their embryos, they had qualified for surrogacy under the prevailing law. Thus, they came to possess a right to surrogacy as a part of reproductive autonomy and parenthood.”

The SC said that “before 25.01.2022, we find that there were no binding laws, certifications, etc. regarding age restrictions on intending couples wishing to avail surrogacy…Therefore, for couples above the (statutory) age limits under the Act, the right to access surrogacy or their entitlement to surrogacy was not conditional on their age and was freely available to couples under the prevailing law.”

The Centre had argued that the age restriction must apply retrospectively but the court did not agree.

The bench, however, clarified that “we are not questioning the wisdom of the Parliament in its prescription of age limits under the Act, or passing a judgment on its validity. Rather, the cases before us are limited to couples who commenced the surrogacy process before the enforcement of the Act, and we limit our observations to the same.”