Surrogacy Age Limits and Retrospective Application

Source: Supreme Court 

Why in News? 

The bench of Justices BV Nagarathna and KV Viswanathan in the case of Arun Muthuvel v. Union of India and connected cases held that section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 does not have retrospective operation and therefore will not apply to couples who had begun the surrogacy process before the Act came into force, even if they exceed the statutory age limits. 

What was the Background of Arun Muthuvel v. Union of India and Connected Cases (2025)? 

• The Surrogacy (Regulation) Act was enacted on January 25, 2022, establishing strict age limits for intending parents: women must be between 23 and 50 years of age and men between 26 and 55 years. 
• The Act also prescribed various other restrictions, including marital status requirements, exclusion of single women except widows or divorcees aged 35 to 45, and a prohibition on couples with a surviving child availing surrogacy. 
• The legislation aimed to curb commercial surrogacy while regulating the practice. 
• However, the law was silent on cases where couples had already begun the surrogacy process prior to the Act's commencement. 
• Several couples who had initiated surrogacy procedures before January 25, 2022, and had their embryos frozen, subsequently exceeded the age limits prescribed under the new law. 
• A batch of petitions was filed challenging various provisions of both the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. 
• The main petition was filed by Chennai-based infertility specialist Dr. Arun Muthuvel, which also challenged the ban on commercial surrogacy. 
• The Court specifically reserved its order on July 29 on the limited question of whether couples who had begun the surrogacy process before the enactment of the 2021 law could proceed despite being over the statutory age limit. 

What were the Court's Observations? 

• The bench held that the commencement of surrogacy for determining age limit applicability means that the gametes have been extracted and the embryo has been frozen. At this stage, there is nothing for the couple themselves to do, as the next step is to transplant the embryo to the surrogate mother. 
• Justice Nagarathna remarked that the bench questioned the rationale behind imposing an upper age limit on intending parents when the surrogate mother, not the intending mother, carries the child. She noted that while an age bar for a surrogate may be reasonable, the same logic might not apply to intending parents. 
• The Court emphasized that life expectancy in India has been increasing and pointed out that there is no such age bar for natural conception or adoption. The bench observed that the purpose of the Act was to curb commercial surrogacy, not to prevent genuine couples from having children through the procedure. 
• The Court noted that concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers, are not compelling reasons for retrospective application of the Act, especially since the state allows some categories of couples—those who wish to conceive naturally—to procreate despite these concerns, or to adopt under personal law. 
• The bench clarified that its observations are limited to couples who had initiated the process before the legislation was enacted and now seek to continue the process. 
• The Court stated it was not questioning the wisdom of Parliament in prescribing age limits under the Act or passing judgment on its validity, rather confining its observations to couples who commenced the surrogacy process before the enforcement of the Act. 

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.