Supreme Court Reserves Order On Whether Couple Who Froze Embryos Prior To Surrogacy Act Can Continue Surrogacy Despite Age Bar

The Supreme Court today reserved its order on the issue of whether a couple, who had frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on January 25, 2022, can continue the surrogacy process despite being over the upper age limit prescribed under the Act.

The 2021 Act prescribes that the woman must be between 23 and 50 years of age and the man between 26 and 55 years.

A bench of Justice BV Nagarathna and Justice KV Viswanathan reserved the order in three matters relating to the eligibility certificate under the Surrogacy Act, where the intending couples had initiated the process before the Act was enacted.

During the hearing, the bench pointed out that the law has a void and is silent about the cases in which a couple started the process before the commencement of the Surrogacy Act.

“Your Act is conspicuous with its silence with regards to those who have started the process. We are only on those who had started the process already. We are not saying that anybody who has started after the Act can come and go for a certificate. We are not saying that”, Justice Nagarathna said.

The cases are part of a batch of petitions challenging provisions of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), including the age limits specified for intending parents.

Additional Solicitor General Aishwarya Bhati vehemently opposed the pleas on various grounds.

When Justice Nagarathna highlighted that that there is no age bar for a person to have a child naturally, Bhati pointed out that the average age of menopause among Indian women is 46.2 years. “God's timeline is stricter”, she said.

However, Justice Nagarathna pressed, highlighting that even women in their 50s do sometimes have kids. She said that having an age limit for a surrogate is understandable, but questioned the rationale for prescribing an upper age limit for the intending mother/couple, as the mother herself does not have to carry the child in surrogacy.

Bhati responded that the age limit was intended to align the process with natural reproductive timelines and was based on concerns regarding the genetic quality of gametes.

Justice Nagarathna pointed out that in such a case, the doctor would have explained the risk to the intending couple and they can take an informed decision regarding the same. She highlighted that even on case of a natural birth, such risk factors exist.

“Why do some couples have a child with Down's syndrome, disability? It's a natural process of birth but even then children have congenital defects, latent defects that become patent as they grow. Can anybody certify that the child will be perfect? See there is no rationale. They will take the risk”, Justice Nagarathna said.

Bhati argued that there is a concern regarding a child's welfare too, as an older couple may not be around to care for the child for long enough. Even after birth the child requires love, support for at least 20 years, she said, pointing to the fact that one of the petitions, the intending father is 64 years old now, and the mother is 58.

However, the bench was not convinced, with Justice Nagarathna remarking that the life expectancy in India is going up, and there is no such age bar for naturally having a child. “Object of the Act is to curb commercial surrogacy. Object of the Act is not to frustrate surrogacy for genuine parents”, Justice Nagarathna said.

“Rational nexus to the object of the Act is absence by having this age bar, especially as there is a void regard to not taking care of the couples who already commenced. Genuine intending couples who had commenced surrogacy, the Act doesn't care for them and put an embargo. Stop, no children! Look how harsh it is”, she added.

Bhati argued that under section 53 of the Act, legal rights of the intending couple concerning surrogacy in such cases crystallise only at the stage when the embryo is implanted in the uterus, as large number of embryos may have been frozen for various reasons, not all related to surrogacy.

The Court pointed out that in the Hindu Marriage Act, there is no upper age limit for parents for adoption. If 50, 60 year old parents can adopt a one-month-old, why can they have a child through surrogacy, the bench asked.

Ultimately, the court reserved its order on the limited issue of age limit for couples who had started surrogacy before the commencement of the Act.

In the petition, the intending couple had frozen their embryos before the Surrogacy Act came into force and fulfilled the requirements under Rule 14 of the Surrogacy (Regulation) Rules, 2022.

The main petition, filed by Chennai-based infertility specialist Dr. Arun Muthuvel, challenges various provisions of the Act including the prohibition of commercial surrogacy, age and marital status restrictions for intending parents, the exclusion of single women except widows or divorcees aged 35-45, and the bar on couples with a surviving child from availing surrogacy.

Earlier, Justice Nagarathna had orally expressed concern about allowing surrogacy beyond the prescribed age limits, highlighting the practical difficulties of raising a child at an advanced age.

Case no. – W.P.(C) No. 756/2022 and connected cases

Case Title – Arun Muthuvel v. Union of India and connected cases