SC: There's no age bar for having kids or adoption, then why for surrogacy?

NEW DELHI: Supreme Court on Thursday ruled that an age bar on aspiring parents under the surrogacy law cannot be enforced retrospectively, and those who froze their embryos before commencement of the law, that is Jan 25, 2022, would be allowed to go for surrogacy irrespective of their age. It also raised questions over the rationality behind the age restrictions when there is no age bar for procreation or adoption.

The Surrogacy (Regulation) Act sets age limits for intending parents and surrogate mothers. It says the intending mother must be between 23 and 50 years, and the intending father between 26 and 55. The surrogate mother must be married and be between 25 and 35 years, have a biological child, and act as a surrogate only once in her lifetime. It allows single women (widowed or divorced) between 35 and 45 to pursue surrogacy.

SC: Not for state to question couple's ability to parent kids

The bench of Justices B V Nagarathna and K V Viswanathan rejected the plea of Centre justifying the restrictions on the ground that children born out of surrogacy would not be cared for properly if the intending mother and father, one or both, are above the prescribed age-limit(s) under the Act.

"In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy... It is not for the State to question the couple's ability to parent children after they had begun the exercise of surrogacy when there were no restrictions on them to do so," the bench said.

The bench allowed the plea of three couples who are in their 50s and 60s and had frozen their embryos before 2022. They moved SC after the authority under the law refused to permit them to move to the next step in the surrogacy process. Giving a ray of hope to all similarly placed couples, the court said they can approach HCs for similar relief.

It also clarified that it was not questioning the wisdom of Parliament on its prescription of age limits under the Act, and the issue before it was limited to couples who had commenced the surrogacy process before the enforcement of the Act. Petitions challenging the age bar are already pending before SC.

"Thus, prior to the enforcement of the Act, the right to pursue surrogacy despite one's age did not impinge on any of the above considerations and was solely in the decision-making domain of the intending couple. It was a personal decision, with personal consequences. Although the Union of India has argued that age-limits are directly related to the welfare of children, as explained above, we are unable to accept this submission in view of the unlimited freedom afforded to couples who wish to conceive children naturally, irrespective of their age," the bench said.

"Thus, if an intending couple had - (i) commenced the surrogacy procedure prior to the commencement of the Act; (ii) were at the stage of creation of embryos and freezing after extraction of gametes; (iii) and 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," the court said.

Centre had taken the stand that the law should be applied retrospectively due to concerns over the declining quality of gametes with age and the potential impact of the same on children born through surrogacy.

Rejecting it, SC said, "On the basis of concerns over gamete quality, the law does not fetter couples who wish to bear children naturally. Moreover, there is no age bar for couples who wish to adopt children under the provisions of the Hindu Adoptions and Maintenance Act, 1956, which personal law applies to the intending couples herein."