The Supreme Court this week reserved its verdict in a clutch of petitions challenging the age cap for couples seeking to have a child through surrogacy, especially those couples who had started the process before the current law on this matter was enacted by Parliament.
The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy.Together, these laws lay down age limits on those intending to have a child through surrogacy. The intending woman, if married, must be between 23 and 50 years of age; fathers must be between 26 and 55, and single women must be between the ages of 35 and 45 years.
Several writ petitions have been filed before the Supreme Court by couples who find themselves stuck in the process due to a change in the law on surrogacy. Essentially, they had begun their treatment before the enactment of the law, but the new law’s age limits make them ineligible for surrogacy. A Supreme Court Bench comprising Justices B V Nagarathna and K V Viswanathan heard three petitions filed by couples requesting eligibility certificates under the Surrogacy Act, arguing that they had initiated the process before the Act was brought in.
In one of the petitions, the husband is 62 years old, while the wife is about 56 years old. The couple lost their only child in 2018 and, desirous of having another child, began fertility procedures in 2019.After facing delays due to the disruptions induced by the COVID-19 pandemic, they were able to eventually arrange for an embryo transfer in early 2022.The petition states that their pregnancy was unsuccessful — and by the time they sought to proceed with another transfer, they had crossed the age limit laid down by the surrogacy law.
The petitioners argued that the retrospective application of these conditions was unreasonable, especially when medical procedures were already underway at the time the Act came into force.They also submitted that the age limit created an unreasonable classification, violating Article 14 of the Constitution, and also interfered with reproductive autonomy, which is a facet of Article 21, which protects personal liberty.
Regulatory laws usually offer transitional safeguards for those navigating compliance during a legislative shift. These provisions are called “grandfather clauses”, which “grandfather in” certain existing situations. The Surrogacy Act has no such transitional clauses.