Surrogacy law: Age bar won't apply if procedure started before Jan 25, 2022, says SC

New Delhi, Oct 9 (PTI) In a significant verdict, the Supreme Court on Thursday said age restriction under the 2021 surrogacy law will not apply to intending couples who commenced the procedure, like freezing of embryos, before the law came into effect on January 25, 2022.

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 case of female, and between 26 and 55 years in case of male, on the day of certification.

A bench of Justices B V Nagarathna and K V Viswanathan noted that the Act came into force with effect from January 25, 2022.

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

It held that Section 4(iii)(c)(I) of the Act does not have retrospective operation.

"Thus, if an intending couple commenced the surrogacy procedure prior to the commencement of the Act, i.e., 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, the age restriction under Section 4(iii)(c)(I) of the Act would not apply," the top court held.

The bench delivered its verdict on two petitions and an application filed by three intending couples, whose common grievance was related to the upper age limit.

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

Justice Nagarathna, who penned the verdict for the bench, said when the petitioners generated and froze their embryos, they qualified for surrogacy under the prevailing law.

"Thus, they came to possess a right to surrogacy as part of reproductive autonomy and parenthood," the bench said.

It did not accept the Centre's submission that age restrictions under the Act should apply retrospectively to such couples also since the State has an interest in ensuring that children born to such parents receive adequate parenting.

"In this regard, we consider it useful to note that the law does not impose any age restrictions on couples who wish to conceive and bear children naturally," it said.

The bench said prior to the enforcement of the Act, the petitioners were on the same footing as couples who wished to conceive naturally, but the stark distinction was that owing to medical reasons/disadvantages, they could not have children naturally.

"Having exercised this parity in freedom by commencing the surrogacy process, can it be said that they can now be denied the continued exercise of this freedom only because of the age bar under the Act? We are not inclined to believe so," it said.

The bench noted that the relevant age limits under the Act are imposed on the intending couples in the present cases.

"Therefore, they are in the nature of fetters on the freedom of choice and the realm of decision-making that, in the absence of regulation, would be the sole prerogative of intending couples," it said.

The bench said for intending couples who undertook surrogacy procedures prior to the Act, age-related considerations were entirely their prerogative and an exercise of their rights under Article 21 of the Constitution.

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

The bench find force in the submissions of the petitioners that right to surrogacy vested in intending couples prior to the enforcement of the Act was a constitutionally recognised right, which continues to be so recognised but subject to reasonable restrictions with a view to obviate exploitation of surrogate mothers through a process of commercial surrogacy.

"Therefore, such a constitutional right cannot be taken away retrospectively from them on account of their age, without an express intention to do so under the Act," it noted.

The bench 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 had manifested their intention to pursue surrogacy and all that remained was involvement of the surrogate mother.

It said a right in existence at the passing of the statute cannot be impacted by its provisions retrospectively in the absence of an express enactment or necessary intendment.

If any other similarly placed intending couple has a grievance with regard to age restrictions 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 top court, the bench said.

Justice Viswanathan penned additional reasons while concurring with the view taken by Justice Nagarathna. PTI ABA ARI