Age bar under surrogacy law won't apply if procedure commenced before Jan 2022: SC

New Delhi, Oct 9 (PTI) The Supreme Court on Thursday said age restrictions under the 2021 surrogacy law will not apply to intending couples who commenced the procedure, like freezing of embryos, before the Act came into force on January 25, 2022.

The apex court said that age restriction won't apply if the intending couple was at the stage of creation of embryos and freezing after extraction of gametes and on the threshold of transfer of embryos to the uterus of the surrogate mother prior to the commencement of the Surrogacy (Regulation) Act, 2021.

The Act set age limits for intending couple and surrogate mothers.

According to the law, the intended mother must be between 23 and 50 years of age, and the intended father must be aged between 26 and 55 on the day of certification.

A bench of Justices B V Nagarathna and K V Viswanathan delivered the verdict on pleas filed by three couples. "...if an intending couple had commenced the surrogacy procedure prior to the commencement of the Act, that is January 25, 2022, and were at the stage of creation of embryos and freezing after extraction of gametes... and on the threshold of transfer of embryos to the uterus of the surrogate mother, in that case, the age restriction would not apply," the bench said while pronouncing the order.

It said the age bar will not apply retrospectively.

The bench said before January 25, 2022, there were no binding laws 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 the couples under the prevailing law," the bench said.

It clarified that the court was not questioning the wisdom of Parliament in its prescription of age limits under the Act or passing a judgement 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," the bench said.

It said freezing of embryos for the purpose of surrogacy is a stage at which one can say that the intending couple has taken multiple bonafide steps and has manifested their intention to pursue surrogacy and all that remain was involvement of the surrogate mother.

The bench said if any other similarly placed intending couple had a similar grievance with regard to age restriction and commencement of the surrogacy procedure prior to the enforcement of the Act, they may approach the jurisdictional high court instead of directly approaching the apex court.

The detailed judgement is awaited.

The top court earlier outlined the importance of safeguarding the interests of surrogate mothers, observing the need for a robust system to prevent exploitation, especially given that commercial surrogacy was prohibited in India. PTI ABA ARI