Supreme Court Allows Surrogacy for Couples Who Initiated Process Before 2021 Law, Despite Age Bar

In a significant development, the Supreme Court of India clarified on Thursday that couples who had initiated the surrogacy process prior to the enforcement of the Surrogacy (Regulation) Act, 2021, can proceed with the process even if they exceed the age limit prescribed under the Act.

"We must clarify that we are not questioning the wisdom of the Parliament in its prescription of age limits under the Act or passing a judgment on its validity. Rather, the cases are limited to couples who commenced the surrogacy process before the enforcement of the Act, and we limit our observations to the same," the Court observed.

The Court was dealing with three cases involving requests for eligibility certificates under the Surrogacy Act. It held that if any other similarly situated couple seeks similar relief, they may approach the jurisdictional High Court, which may apply this judgment to decide the matter appropriately.

Background

The legal question arose from the age restrictions imposed by the 2021 legislation, which permits surrogacy only if the woman is between 23 and 50 years, and the man is between 26 and 55 years. The couples in the case had frozen embryos before the Act came into force on January 25, 2022, and sought to complete the surrogacy process despite crossing the upper age limit.

During the hearing, Justice BV Nagarathna, who was part of the bench, noted that the Act is silent on situations where couples had already taken preparatory steps before its enactment. She clarified that the matter before the Court was limited to such couples and did not involve those who began the process after the Act came into force.

The bench also questioned the rationale behind imposing an upper age limit on intending parents when the surrogate, and not the intending mother, carries the child. Justice Nagarathna remarked that although an age bar may be reasonable for surrogates, the same logic may not apply to intending parents.

Centre’s Opposition

Additional Solicitor General Aishwarya Bhati, appearing for the Union Government, opposed the pleas, arguing that the age limit was grounded in biological considerations and concerns about the genetic quality of gametes. She also cited the welfare of the child, stating that older parents might not be able to provide long-term care.

Bhati referred to a case where the intending father was 64 years old and the mother was 58, as an example of concern.

However, Justice Nagarathna countered, noting that life expectancy in India is increasing, and there is no such age bar for natural conception or adoption. She reiterated that the purpose of the Surrogacy Act is to prevent commercial surrogacy, not to obstruct genuine attempts at parenthood.

Bhati further submitted that under Section 53 of the Surrogacy Act, legal rights arise only upon implantation of the embryo in the surrogate’s uterus. She argued that frozen embryos are often preserved for various reasons and not all are intended for surrogacy.

The bench referred to adoption laws, noting that no upper age limit exists for adoptive parents under the Hindu Adoption and Maintenance Act. “If older couples can adopt a child, it is unclear why they should be barred from becoming parents via surrogacy,” the Court remarked.

Wider Challenge to Surrogacy and ART Laws

These petitions form part of a larger constitutional challenge to provisions of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. The main petition, filed by Dr. Arun Muthuvel, a Chennai-based infertility specialist, challenges provisions including:

• Age and marital status restrictions

• The exclusion of single women (except widows or divorcees aged 35-45)

• The prohibition on couples with a surviving child from availing surrogacy

• The complete ban on commercial surrogacy

While the Court reserved its final order on the broader issues, this decision provides limited relief to those couples who had already begun the surrogacy process before the new legal framework came into effect.

Case Title: Arun Muthuvel v. Union of India