Surrogacy Law on Age Restrictions in India

Source: Indian Express 

Introduction 

Surrogacy has become a ray of hope for countless couples struggling with infertility in India. However, recent legal changes have created significant challenges for many families. The Supreme Court of India has recently reserved its verdict on petitions challenging the age restrictions imposed by the country's surrogacy laws, particularly affecting couples who had already begun their surrogacy journey before the new rules came into effect. 

What was the Current Issue on Arun Muthuvel v. Union of India (2024) and Connected Cases? 

• The controversy centers around couples who find themselves caught in a legal maze. These families had started their surrogacy procedures before January 2022, when the new surrogacy laws came into force. However, by the time they needed to proceed with their treatment, they had crossed the age limits set by the new legislation. 
• One heart-wrenching case before the Supreme Court involves a couple aged 62 and 56. They lost their only child in 2018 and desperately wanted another child. They began fertility procedures in 2019, but due to COVID-19 delays, their embryo transfer only happened in early 2022. When that attempt failed and they tried to proceed with another transfer, they discovered they were now too old according to the new law. 
• The petitioners argue that applying these age restrictions retrospectively is unfair, especially since there are no "grandfather clauses" - legal provisions that would protect people who had already started the process under the old rules. 

What were the Court’s Questions and Observations? 

• The Supreme Court, comprising Justices B V Nagarathna and K V Viswanathan, raised several thought-provoking questions during the hearings. Justice Nagarathna made a particularly striking observation: "Why should surrogacy be outlawed for older couples when natural geriatric pregnancies are not prohibited?" 
• The court questioned whether there was a logical connection between the age restrictions and the actual purpose of the surrogacy law. Justice Nagarathna emphasized the harsh reality, stating: "Genuine intending couples who had commenced surrogacy, the Act doesn't care for them and puts an embargo. Stop, no children! Look how harsh it is." 
• The court also pointed out that the surrogacy law was meant to prevent commercial surrogacy (where money changes hands), not to deny genuine couples the chance to become parents. 

Government's Defense:  

The government, represented by Additional Solicitor General Aishwarya Bhati, defended the age limits on medical grounds. They argued that: 

• The age caps are based on expert medical recommendations. 
• They align with natural reproductive timelines. 
• Advanced parental age can affect the child's health through genetic changes. 
• Older parents may not be able to provide adequate care for 20 years of a child's life. 

Petitioners' Arguments:  

The couples challenging the law claim that: 

• The retrospective application violates their right to equality (Article 14 of the Constitution). 
• It interferes with their reproductive autonomy, which is part of personal liberty (Article 21). 
• The law creates unreasonable classifications between people. 
• There should have been transitional provisions for ongoing cases. 

What was the Legal Provisions Related to Surrogacy in India? 

• The Surrogacy (Regulation) Act, 2021  
• The Assisted Reproductive Technology (Regulation) Act, 2021 

Key Features of These Laws: 

• Types of Surrogacy Allowed: 
  • Only "altruistic surrogacy" is permitted - where the surrogate mother receives no payment beyond medical expenses. 
  • "Commercial surrogacy" is completely banned - no money can be paid to the surrogate for carrying the child. 
• Who Can Opt for Surrogacy: 
  • Married couples: Woman must be 23-50 years old, man must be 26-55 years old. 
  • Single women: Only widows or divorced women between 35-45 years old. 
  • The couple must prove they are infertile and cannot have children naturally. 
• Requirements for Surrogacy: 
  • A certificate proving medical necessity. 
  • Court order establishing parentage and custody rights. 
  • Insurance coverage for the surrogate mother for 36 months. 
  • The surrogate must be a close relative of the intending couple. 
• Who Can Be a Surrogate Mother: 
  • Must be a married woman with at least one child of her own. 
  • Age between 25-35 years. 
  • Can only be a surrogate once in her lifetime. 
  • Must be a close relative of the intending couple. 
  • Cannot use her own eggs for the surrogacy. 
• Regulatory Bodies: 
  • National Surrogacy Board at the central level. 
  • State Surrogacy Boards in each State. 
  • All surrogacy clinics must be registered with appropriate authorities. 

Current Limitations and Controversies: 

Who Cannot Access Surrogacy: 

• Unmarried single women (only widows/divorcees allowed) 
• LGBTQ+ individuals and couples 
• Live-in couples who are not legally married 
• Single men 

Major Criticisms: 

• The law is considered too restrictive and excludes many who genuinely need help. 
• Requiring a close relative as surrogate creates practical and emotional complications. 
• The complete ban on commercial surrogacy might push the practice underground. 
• No clear definition of "close relative" creates confusion. 

Conclusion 

The Supreme Court's upcoming verdict will significantly impact how surrogacy laws balance individual reproductive rights with medical safety and social concerns. The case provides the need for laws that are both protective and compassionate, especially for couples who had already begun their journey toward parenthood. Whatever the court decides will set important precedents for reproductive rights in India and may influence how future legislation handles transitional periods when laws change. The verdict is eagerly awaited by thousands of couples across the country who see surrogacy as their path to fulfilling their dream of parenthood.