Surrogacy age limits don't apply to couples who began process before Jan 2022: Supreme Court

The Supreme Court on Thursday ruled that restrictions imposed by the Surrogacy (Regulation) Act, 2021 on the age limits of couples who choose to become parents through surrogacy, will not apply to couples who started the surrogacy process before the Act came into force in January 2022. .A Bench of Justices BV Nagarathna and KV Viswanathan passed the ruling on petitions by three couples who had crossed the upper age limit specified in the Surrogacy Act – 50 for female and 55 for males, and entered the process of surrogacy by freezing embryos, transferring it to the womb, etc., before the law came into force."For intending couples who undertook surrogacy procedures prior to the Act, age-related considerations were entirely their prerogative and as explained earlier, an exercise of their rights under Article 21 of the Constitution. Therefore, we have no hesitation in observing that the right to make autonomous decisions regarding the age at which one wished to pursue surrogacy, had vested in intending couple Nos.1 to 3. Hence, since there is no manifest intention in the provisions of the Act to apply the age-limits retrospectively, we are of the view that the same is not permissible," the Court ruled..The Court rejected the Union government's argument that age-limits can be transgressed only when the surrogate mother has been introduced into the surrogacy procedure."The ‘commencement’ of the surrogacy process for the limited purpose of determining when the age-limits under the Act must be applied prospectively and not retrospectively takes place after the intending couple has completed the extraction and fertilisation of gametes and has frozen the embryo with an intention to and for the purposes of, transfer to the womb of the surrogate mother. There is no additional step to be undertaken by the couple themselves. All subsequent steps would involve only the surrogate mother," it observed.Further, the Court said that when there was no age restriction at the stage of creation of embryos and freezing them – prior to the enforcement of the Act, when the intending couples are at the threshold of subsequent Stage, the age restriction cannot be permitted to operate retrospectively on such intending couples "so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right under Article 21 of the Constitution.".Summarising the Court's findings, the judgment says,"If an intending couple had - (i) commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and (ii) were at the stage of creation of embryos and freezing after extraction of gametes; and (iii) 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.".Justice Viswanathan in a concurring judgment said the transitional provision under the 2021 law cannot be construed as a free license to divest petitioners of their vested right."As we construe the Act, vested rights are not divested, and the new disability created will not apply to cases like that of the petitioners (intending couples), and their rights do not stand neutralised," the judge said..The Surrogacy (Regulation) Act of 2021 came into force on January 25, 2022. Section 4 (iii)(c)(I) of this Act lays down that the intending couple must be married and between the age of 23 to 50 years in the case of female, and between 26 to 55 years, in case of male, to be eligible to have a child through surrogacy.This restriction was challenged by three couples, who had crossed the upper age limit laid down in this Section. They argued that this age restriction cannot be applied to them since they had begun the surrogacy process before such a legal restriction was introduced.The Court today granted them relief. "Here, owing to medical reasons, the couple could not have children naturally.. Can they now be denied just because of the age bar under this Act? We cannot say so. We are not questioning the Parliament's intent but we are on a couple who began the process of surrogacy before the Act came into place," the Bench held. It concluded that the reasons given by the Central government for a retrospective application of the 2021 Act's age restrictions to couples who began the surrogacy process before the law was enacted were not adequate. The Court also briefly questioned the reasoning behind imposing such age restrictions, although it did not ultimately decide on their validity. "Although the Union has argued that the age limit is linked to the welfare of children, we are unable to agree since there is unlimited freedom available to couples who have children naturally, irrespective of their age," it observed. .Senior Advocate Pinky Anand and Advocate Mohini Priya appeared for the petitioners. Additional Solicitor General Aishwarya Bhati represented the Union of India..[Read Judgment].[Live Coverage]