Concerns over parenting not compelling reason for retrospective application of surrogacy law: SC

New Delhi, Oct 9 (PTI) The Supreme Court on Thursday said concerns over parenting and gamete quality are not compelling reasons for retrospective application of the Surrogacy (Regulation) Act, 2021, especially since the State allows some categories of couples to procreate despite these concerns.

In a significant verdict, the court said the age bar under the Act would not apply to intending couples who have commenced the procedure, like freezing of embryos, prior to the commencement of the law on January 25, 2022.

A bench of Justices B V Nagarathna and K V Viswanathan noted the Centre's submissions that age limits should be applied retrospectively due to concerns over the declining quality of gametes with age and the potential impact of the same on the children born through surrogacy.

The bench said before January 25, 2022, there were no binding laws or certifications regarding age restrictions on intending couples wishing to avail surrogacy.

"On the basis of concerns over gamete quality, the law does not fetter couples who wish to bear children naturally," the bench noted.

"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," it said.

The bench said it is not questioning the wisdom of Parliament in its prescription of age limits under the Act or passing a judgment on its validity.

"Concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers (though we do not express any opinion on the same), are not compelling reasons for retrospective application of the Act, especially since the State allows some categories of couples (those who wish to conceive naturally) to procreate despite these concerns or for that matter, to opt for adoption as per personal laws," it said.

The bench said since there is no manifest intention in the provisions of the Act to apply the age limits retrospectively, the same is not permissible.

The top court dealt with a provision of the Surrogacy (Regulation) Act, 2021, which states that an intending couple requires an "eligibility certificate", certifying that they are married and between the age of 23 and 50 years in the case of the woman and between 26 and 55 years in the case of the man on the day of the certification.

The court delivered its verdict on two petitions and an application filed by three intending couples whose common grievance was with regard to the upper-age limit.

The petitioners had argued that they had commenced the surrogacy procedures prior to the enforcement of the Act and when they were in the midst of the procedure, the law brought in an embargo in the form of the age limit.

In its verdict, the bench said the couples could have opted to adopt children under personal laws in the absence of an age restriction.

"In such a situation, the argument regarding quality parenting would be futile and of no consequence," it said.

It said prior to the enforcement of the Act, the right to pursue surrogacy despite one's age did not impinge on any of the considerations and was solely in the decision-making domain of the intending couple.

"It was a personal decision, with personal consequences," the bench said.

It said although the Centre had argued that age limits were directly related to the welfare of children, "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 in recent jurisprudence, the apex court has often recognised that "reproductive autonomy" is part of the constellation of rights afforded to all citizens under Article 21 of the Constitution.

It said the Act has the object of regulating surrogacy so as to protect it from commercial exploitation.

"The object of the Act is not to frustrate the rights of intending couples who are otherwise eligible to undertake surrogacy procedures," it said.

The bench noted that the first move towards prohibiting commercial surrogacy came with the 228th report of the Law Commission in 2009, which flagged the problem of India becoming a "reproductive tourism destination" (that is foreign couples coming to the country for cost-effective surrogacy procedures), and wombs being "on rent". PTI ABA RC