Surrogacy Age Limit Row Reaches Supreme Court as Parents Seek Relief After Failed IVF. Court observes, “When the process started, there was no age bar,” raising key questions on retrospective application of new surrogacy rules.
The Supreme Court of India is heard a writ petition filed by some parents who are requesting the right to go for surrogacy after their attempts at In-Vitro Fertilisation (IVF) failed.
The matter was taken up by a Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan.
During the hearing, the counsel for the petitioners explained the provisions of the Surrogacy (Regulation) Act and also referred to the Indian Council of Medical Research (ICMR) guidelines.
On the other hand, the respondents raised a critical legal issue, arguing that the main question was “whether the surrogacy can be done beyond the ambit of the act.”
They added,
“The right to pursue this process is when they get certification.”
Justice Nagarathna noted,
“When you applied you are 54 and when the certificate arrives you are 55.”
Justice Viswanathan pointed out,
“Everything which is not prohibited is permitted.”
The respondents claimed that the petitioners were not individual applicants whose certificates were delayed. They also submitted,
“These are fertilised egg which are yet to be implanted in a womb.”
The petitioners responded by saying,
“An embryo is defined under the act.”
The respondents further stated,
“Before this there was nothing which was governing the process except the ICMR guidelines. There was a lot of manipulation. You can’t carry on in manner which is prohibited.”
Justice Nagarathna observed,
“When the process started there was no prohibition on age. Nowadays the parents are working and grandparents are bringing up the child.”
The respondents replied,
“That is to be decided by the legislature.”
The petitioners argued,
“The object of the act has nothing to do with the couple. It is for stopping manipulation of the surrogate mother.”
When the Bench asked,
“What would you do if the child was already in the womb,”
The respondents referred to a provision and said,
“That is where the Sec 53 comes in.”
The counsel then continued to take the court through the provisions of the Act.
The respondents added,
“Therefore this age criteria has come in.”
The court then asked,
“Now what about rule 14.”
The petitioners replied,
“I come under 14B. The question is only about the age bar. This exercise is not about fun.”
The court remarked,
“We will say that the process has commenced. When they commenced the process there was no age bar.”
The respondents agreed that there was a regulatory gap at that time, saying, “Because there was a regulatory vacuum.”
The court then asked a key question,
“Exactly so do they lose their right.”
The judges noted that now even natural childbirth is possible at older ages.
The court asked,
“Nowadays we are seeing natural birth at the age of 60. Why can’t the age be beyond that,”
The respondents said,
“That is for expert consideration.”
The petitioners added,
“There is no such mention in the parliamentary debates.”
The Bench further asked,
“If subsequently an activity is made illegal then can the regulations be applied retrospectively. Article 20 would then come in picture.”
The court inquired,
“The surrogate mother if she is carrying the foetus she is protected. How many days prior to the commencement did the process started?”
The petitioner replied, “2020 in my case.”
The respondents responded, “They were already over with the process.”
The court noted,
“They had already commenced.”
The respondents then asked,
“What would be commencing that is the question.”
They further said,
“The process of surrogacy starts when the embryo is implanted in the womb. That is clearly given in the act.”
The counsel also explained the legal definition of surrogacy.
The court then asked,
“When the embryos are frozen wouldn’t it come under handling.”
The respondents submitted,
“The age criteria is for the welfare of the child.”
They also raised concerns about the method, saying,
“Now we don’t even know how even these procedures were taken place. What is the source of the right that it commenced just by freezing of the embryos.”
The court then asked,
“All other regulations are satisfied?”
The petitioners replied, “Yes, age is the only bar.”
The respondents added,
“The embryos can be frozen for many years. Your Lordships may face a situation of 70 years of age.”
Justice Nagarathna pointed out,
“The couple had started the process before the commencement of the act and the embryos had already been frozen and further steps had been taken and which the couple crossed the age bar. The intending couple have completed all other requirement.”
The respondents accepted,
“This can be allowed that is the clear stand My Lords.”
The court added,
“Prior to the statute even at 65 they could have done the process.”
However, the respondents gave a cautionary argument,
“If tomorrow I set up a tomato farm and then gets illegal I can’t say that I had already set up the farm.”
The matter has been posted for further hearing tomorrow at 2:00 PM.
Case Title: ARUN MUTHUVEL V UNION OF INDIA AND ORS, W.P.(C) No. 756/2022