The Supreme Court of India is currently examining petitions challenging the age restrictions for couples seeking surrogacy. These limits were introduced by the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021. The petitions focus on couples who began surrogacy procedures before the laws came into force but who are now barred by the new age caps. The Court is weighing arguments on fairness, constitutional rights, and medical safety.
Background of Surrogacy Legislation
In 2021, India enacted two laws to regulate surrogacy and assisted reproductive technology. These laws ban commercial surrogacy and permit only altruistic surrogacy. They set strict age limits – married women must be 23 to 50 years old; married men 26 to 55 years; and single women, restricted to widows or divorcees, must be 35 to 45 years. The laws aim to prevent exploitation and ensure surrogacy is used only when medically necessary.
Age Limits and Eligibility Criteria
The Surrogacy Act requires couples to obtain certificates proving infertility, parentage, and insurance for the surrogate. Age caps are justified by the government as necessary for medical safety and the welfare of the child. Single unmarried women are excluded from eligibility, a provision currently challenged in court for being arbitrary and discriminatory.
Legal Challenges and Constitutional Issues
Several couples have filed petitions claiming the retrospective application of the age limits is unfair. They argue that starting treatment before the law’s enactment should allow them to continue. Petitioners also invoke Article 14 (equality before law) and Article 21 (right to personal liberty and reproductive autonomy) of the Constitution of India. The absence of transitional provisions or grandfather clauses in the law leaves these couples in legal limbo.
Medical and Ethical Considerations
The government defends age restrictions on grounds of medical risk associated with advanced parental age. It cites concerns such as genetic risks and the long-term welfare of the child. However, the Court has questioned why surrogacy should be prohibited for older couples when natural pregnancies at advanced ages are not outlawed. This raises ethical questions about balancing risk with reproductive rights.
Judicial Deliberations and Broader Implications
The Supreme Court Bench has expressed concern over the harsh impact of the law on genuine intending parents. It marks a conflict between preventing commercial surrogacy and protecting the rights of couples seeking parenthood. The issue also touches on the rights of single unmarried women, which remains unresolved. The Court’s verdict will shape the future of reproductive rights and surrogacy regulation in India.
Questions for UPSC:
- Critically discuss the constitutional challenges related to reproductive rights under Articles 14 and 21 in the context of surrogacy laws in India.
- Examine the ethical and medical considerations involved in setting age limits for assisted reproductive technologies and their impact on society.
- Analyse the role of transitional provisions like grandfather clauses in regulatory legislation and their importance in ensuring justice during legal reforms.
- Point out the implications of restricting surrogacy to altruistic arrangements only; how does this affect the rights of single women and the prevention of commercial exploitation?
