Individual hardship no ground to relax law: Gauhati High Court rejects couple’s plea against surrogacy age limit

Section 4 (iii)(b)(I) of the Act provides that no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise.

Findings

• The Act, 2021, is a comprehensive legislative measure enacted after extensive deliberation to address ethical concerns, prevent exploitation of surrogate mothers, ensure transparency, and safeguard the interests of children born through surrogacy.
• In the context of surrogacy, age limits are clearly linked to the concerns of paternal capacity, health, longevity, and long-term welfare of the child. The provision, therefore, cannot be characterised as arbitrary or irrational.
• The restriction on the use of donor gametes by a married couple reflects a policy choice aimed at ensuring genetic linkage between the child and the intending parents, a consideration that the Parliament was entitled to prioritise.
• The mere fact that the petitioners had earlier attempted surrogacy does not immunise them from compliance with the law as it stands today, as their surrogacy failed and cannot be said to be a continuing one.
• Constitutional adjudication cannot be guided by sympathy alone. The impugned provisions represent a considered legislative policy and do not infringe on Articles 14 or 21 of the Constitution of India.

Background

• The married couple were facing infertility issues due to which they went for extensive medical efforts including IVF technology, which failed.
• Subsequently they decided to go for surrogacy. However, during the said process, the Surrogacy (Regulation) Act, 2021 was enacted which mandated specific permission and certification to opt for surrogacy.
• The couple again initiated the surrogacy procedure but it failed. Thereafter, the central government issued a notification which prevents the use of donor sperm to avail a surrogacy procedure by a married woman, excluding single women, with an exception in respect of widows or divorcees.
• When the couple, thereafter, sought fresh permission to initiate surrogacy, the authorities declined the request on the grounds of statutory ineligibility.
• The couple moved the high court challenging the refusal of the competent authorities to permit them to pursue surrogacy.