Today, On 9th October, The Supreme Court ruled that couples who started the surrogacy process before January 2022 can proceed even if they exceed the age limits set by the Surrogacy (Regulation) Act, 2021.
The Supreme Court ruled that the age restrictions set by the Surrogacy (Regulation) Act, 2021, do not apply to couples who initiated the surrogacy process before the law took effect in January 2022.
A Bench comprising Justices BV Nagarathna and KV Viswanathan issued the ruling in response to petitions from three couples who exceeded the upper age limits specified in the Act (50 for women and 55 for men) but had already started the surrogacy process, such as embryo freezing and transfer, before the law was enacted.
The Court stated,
“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 … Writ petitions are allowed. If any other intending couple has a similar issue and wishes to seek redressal, they may approach the High Court and apply this judgment,”
The Court clarified that the term ‘surrogacy process’ refers specifically to actions such as freezing embryos, rather than merely visiting a medical facility.
It emphasized that the age restrictions of the 2021 Act would not apply if the couple had taken significant steps like extracting gametes and fertilizing embryos, demonstrating their clear intention to proceed with surrogacy.
Justice Nagarathna noted while delivering the lead judgment,
“So, if the surrogate child is born within 10 months of the 2021 Act, the age restriction to couples will not be applicable … Here, the couple was in the last stage of the process and a step away from (engaging) the surrogate mother. It is only after the intending couple has extracted eggs and fertilised the embryo … and frozen the same.. that is the stage where it can be said that the couple has decided to go for surrogacy, and the only step is to involve the surrogate mother,”
She also pointed out that the validity of the age restriction for couples covered by the 2021 law was not addressed in this judgment.
Justice Viswanathan concurred, stating,
“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.”
The Bench concluded,
“Here, owing to medical reasons, the couple could not have children naturally.. Can they now be denied just because of the age bar under this Act? We cannot say so. We are not questioning the Parliament’s intent but we are on a couple who began the process of surrogacy before the Act came into place,”
The Court found the Central government’s rationale for applying the 2021 Act’s age restrictions retroactively to couples who had started the surrogacy process before the law was insufficient.
While the Court did not ultimately rule on the validity of the age restrictions, it did raise questions about the reasoning behind them.
It remarked,
“Although the Union has argued that the age limit is linked to the welfare of children, we are unable to agree since there is unlimited freedom available to couples who have children naturally,”
Surrogacy is a method of assisted reproduction where a woman (called a surrogate mother) carries and delivers a child for another person or couple (known as the intending parents) who cannot conceive naturally.
Surrogacy can be without financial gain or commercial with payment. The practice has ethical, social, and legal implications, particularly concerning the rights of the child, the surrogate mother, and the intending parents.
Before the Surrogacy (Regulation) Act, 2021, surrogacy in India was largely unregulated, which led to unethical practices, exploitation of women, and legal disputes over parentage. To prevent misuse and protect all parties involved, India introduced the Surrogacy (Regulation) Act, 2021.
Key Features of the Surrogacy (Regulation) Act, 2021:
- Came into effect on January 25, 2022.
- Prohibits commercial surrogacy, allowing only altruistic surrogacy.
- Only heterosexual Indian couples married for at least five years and unable to conceive naturally are eligible.
- Couples must meet age and medical requirements.
- Establishes a framework for authorities, registration, and regulation of clinics.
- Surrogate mothers can only be women aged 25–35 who have already delivered a child and can have a maximum of one surrogacy in a lifetime.
- Provides legal safeguards for surrogate mothers and children, including mandatory health insurance for surrogate mothers.
Section 4(iii)(c)(I) – Certificates Requirement:
Section 4(iii)(c)(I) is part of the Act’s provisions to ensure ethical surrogacy practices.
It states,
“No surrogacy shall be carried out unless the intending couple or intending woman has obtained a Certificate of Essentiality, and the surrogate mother has obtained a Certificate of Eligibility.”
- Certificate of Essentiality: Issued to the intending couple or woman to confirm that surrogacy is necessary due to medical reasons, and that the couple meets the eligibility criteria under the Act.
- Certificate of Eligibility: Issued to the surrogate mother to ensure she meets the health, age, and prior childbirth conditions, and is fit to undergo the surrogacy process.
These certificates are mandatory before any surrogacy procedure, ensuring compliance with legal, medical, and ethical standards.
The Surrogacy (Regulation) Act, 2021 aims to:
Ensure ethical practices in fertility clinics and agencies involved in surrogacy.
- Protect the rights of surrogate mothers, preventing exploitation.
- Safeguard the rights and welfare of the child born through surrogacy.
- Establish a transparent and regulated surrogacy system in India.
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