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Barriers in Surrogacy Laws
Context: The Supreme Court of India has reserved its verdict in a set of petitions challenging the age restrictions imposed by the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021.
What Do the Current Surrogacy Laws in India Say?
- The Surrogacy and ART Acts, enacted in January 2022, regulate assisted reproduction and surrogacy in India.
- These Acts:
- Ban commercial surrogacy and allow only altruistic surrogacy.
- Prescribe age limits for intending parents: Married women: 23–50 years, Married men: 26–55 years and Single women: Only if widowed or divorced, aged 35–45 years.
- Additionally, intending couples must obtain a certificate of essentiality, which includes: Proof of infertility, A court order on parentage and custody and Insurance for the surrogate mother.
What Is the Supreme Court Hearing About and Key Constitutional Challenges?
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- Three couples have petitioned the Supreme Court, arguing that they began surrogacy procedures before the Surrogacy (Regulation) Act, 2021 came into effect, but are now deemed ineligible due to retrospective age restrictions.
- In one case, a couple lost their only child in 2018 and began fertility treatment in 2019, but delays and a failed embryo transfer in 2022 pushed them past the new legal age limit.
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Petitioners argue the age cap:
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- Violates Article 14 (Right to Equality) by creating unreasonable classifications.
- Infringes Article 21 (Right to Life and Personal Liberty), especially reproductive autonomy.
- Lacks a “grandfather clause”, leaving ongoing cases in legal limbo.
- Unfairly excludes unmarried single women, limiting access to surrogacy only to widows or divorcees.
What Was the Government’s Justification for Age Restrictions?
The Centre defended the age caps by citing:
- Medical safety: Higher parental age increases risks for the child, including genetic and epigenetic issues.
- Emotional and developmental needs: Children need parental support for 20 years, and advanced age may not serve that goal.
- Expert recommendations: The age limits were based on global practices and medical advice.
- However, the Bench countered that natural geriatric pregnancies are not banned, so why should surrogacy be?
Why Is the Absence of a “Grandfather Clause” Problematic?
- In regulatory practices, “grandfather clauses” protect those already in compliance before a new law takes effect.
- The Surrogacy Act lacks such a provision, leaving many couples in a legal limbo.
- The Court questioned whether this rigid cutoff, without transitional safeguards, meets the intended goal of the law — to prevent commercial exploitation, not to block genuine parenthood.
