Age Limit under Surrogacy Act Valid

Source: Gauhati High Court

Why in News?

The division bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury in the case of Seema Chakraborty & Anr. v. Union of India & Ors. (2025) held that statutory restrictions governing surrogacy are constitutionally valid and cannot be relaxed on the basis of individual circumstances.

What was the Background of Seema Chakraborty & Anr. v. Union of India & Ors. (2025) Case? 

• The writ petition was filed by a married couple challenging their ineligibility to pursue surrogacy after crossing the prescribed age limit and due to amended donor-gamete restrictions. 
• The petitioners suffered from medically certified conditions rendering natural conception impossible. 
• They had earlier attempted surrogacy with the Court's permission, but the attempt failed for medical reasons. 
• When the amendment dated 14.03.2023 came into force, no surrogacy process of the petitioners was continuing, as the earlier attempt had already failed. 
• In the meantime, the petitioners crossed the upper age limit prescribed under Section 4(iii)(b)(I) of the Surrogacy (Regulation) Act 2021. 
• When the petitioners sought fresh permission to initiate surrogacy thereafter, the authorities declined the request on grounds of statutory ineligibility and non-compliance with the amended Form-2. 
• The petitioners contended that the rejection violated their fundamental rights under Articles 14 and 21 of the Constitution of India. 
• They argued that reproductive autonomy is an integral facet of personal liberty and dignity. 
• They urged that they were eligible when they first attempted surrogacy and that the failure of the process was involuntary. 
• The petitioners contended that subsequent statutory changes cannot be applied to extinguish their rights to parenthood permanently. 
• The amendment to Form-2 was assailed as discretionary, as donor gametes are permitted for specific categories of single women but not for married couples.

What were the Court's Observations? 

On Eligibility and Statutory Compliance: 

• The Court held that eligibility conditions must be satisfied on the date when the benefit is claimed, unless the statute expressly provides otherwise. 
• The failure of the earlier surrogacy attempt, though unfortunate, does not confer a vested right to re-initiate surrogacy in disregard of subsequently enacted or amended statutory requirements. 
• The Court observed that in the context of surrogacy, age limits are clearly linked to concerns of health, longevity and the long-term welfare of the child. 

On Legitimate Expectation: 

• The plea of legitimate expectation was rejected by the Court. 
• The Court held that legitimate expectation neither can be operated against a statute, nor can it be invoked to defeat a clear legislative mandate. 

On Donor Gametes Restriction: 

• The Court upheld the amended Form-2 restricting the use of donor gametes by married couples. 
• The restriction reflects a policy choice aimed at ensuring genetic linkage between the child and the intending parents, a consideration that Parliament was entitled to prioritize. 

On Retrospective Application: 

• The Court rejected the argument of retrospective application. 
• The Court observed that the petitioners were seeking to initiate a fresh surrogacy process after the amendment had come into force. 
• The impugned provisions are not being applied retrospectively but are being applied to a fresh attempt at surrogacy initiated after the commencement or amendment of the Act 2021 and the Rules 2022. 

On Constitutional Validity: 

• The Court held that the measures pursue legitimate state interests and bear a rational nexus with the object of the legislation. 
• The restrictions cannot be said to be excessive or oppressive. 
• Individual hardship, however genuine, cannot be a ground to strike down or relax a statutory policy framed in the public interest. 
• The Court concluded that while it is not unmindful of the petitioners' predicament, constitutional adjudication cannot be guided by sympathy alone. 
• The impugned provisions represent a considered legislative policy and do not infringe on Articles 14 or 21 of the Constitution of India. 
• Accordingly, the writ petition was dismissed. 

What is Surrogacy?  

• Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s). 
• A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s). 
• Surrogacy, which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy is often referred to as Altruistic surrogacy.  
• Surrogacy which is undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage is termed as Commercial surrogacy.

What are the Legal Provisions in Relation to Surrogacy in India?  

Surrogacy (Regulation) Act, 2021: 

• Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option. 
• The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child. 
• It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs. 
• The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child. 

Surrogacy (Regulation) Rules, 2022: 

• Surrogacy (Regulation) Rules, 2022 which provides the form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic. 
• Surrogacy clinics shall have at least one gynecologist, one anesthetist, one embryologist and one counselor.  
• The intending woman or couple must purchase a general health insurance coverage in favor of surrogate mother for a period of thirty six months from an insurance company or an agent for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.  
• The number of attempts of any surrogacy procedure on the surrogate mother shall not be more than three times.  
• The consent of a surrogate mother shall be as specified in Form 2. 

The Assisted Reproductive Technology (Regulation) Act, 2021: 

• This Act provides a system for the implementation of the law on surrogacy by setting up of the National Assisted Reproductive Technology and Surrogacy Board. 
• It aims at the regulation and supervision of ART clinics and assisted reproductive technology banks, prevention of misuse, and safe and ethical practice of ART services.