SC: Under Surrogacy Law, The Age Bar Won't Apply If Procedure Commenced Before January 2022

New Delhi: The Supreme Court on Thursday said the age restrictions under the 2021 surrogacy law will not apply to intending couples who commenced the procedure, like freezing of embryos, before the Act, which set age limits for intending couples and surrogate mothers, came into force on January 25, 2022. 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.

The judgment was delivered by a bench comprising Justices B V Nagarathna and K V Viswanathan on pleas filed by three couples. The bench said the age bar will not apply retrospectively. The apex court said that the 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 bench said, "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 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 limit 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," said the bench. The bench made it clear that it was not questioning the wisdom of Parliament in its prescription of age limits under the Act or passing a judgement on its validity. The bench said the cases before it are limited to couples who commenced the surrogacy process before the enforcement of the Act, and it will limit observations to the same.

The apex court said concerns over parenting and gamete quality are not compelling reasons for retrospective application of the Act, especially since the state allows some categories of couples to procreate despite these concerns. Section 4(iii)(I) of the Surrogacy (Regulation) Act, 2021 prescribes that legally the woman must be between 23 and 50 years of age and her husband between 26 and 55 years in order to avail benefits of surrogacy.

The top court said the right to surrogacy of such couples crystallised when they had their embryos frozen under the law prevailing at that time, and the age restriction under the Act cannot apply retrospectively to such couples. The bench, refusing to accept the Centre's argument for retrospective application of age limit, said it's not the job of the state to decide the suitability of parents as there's no age bar on couples who wished to have children naturally.

Justice Viswanathan, in a separate but concurring judgment, said, "The petitioners had exercised the liberty (to have a child by surrogacy) when there was no disability (including age restrictions) as such. It was only after the process that the age bar and marriage restriction were introduced."

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