'Difficult To Bring Up A Child In Your 60s': Supreme Court On Challenge To Age Limit Under Surrogacy Act

The Supreme Court on Tuesday orally expressed its reservations about the applications filed before it by persons wanting to have a child through surrogacy under the Surrogacy (Regulation) Act, 2021 who are beyond the age limit prescribed under the Act. 

"There are cases where people in their 60s are saying they want children. It is so difficult to bring up a child at that age. Once a child starts walking, you know how difficult it is to monitor a child. Under Adoption Act, there is a cap on the combined age for adoption. In their 60s, having a child is very difficult. The child wouldn't know whether to call them as a father or grandfather. We have to look at the child's point of view, whether they can take care of the child. It is very easy to bring a child into this world, but rear a child, educate a child is not easy. What about the rights of the child? Even normal people will think a 100 times before having in kid in their late 30s or 40s' Justice Nagarathna said.  

A bench of Justice B V Nagarathna and Justice Ujjal Bhuyan has been considering a batch of pleas challenging the upper age limit for surrogacy. Under the 2021 Act, the age prescribed for the woman is 23 to 50 years and the age prescribed for the man is 26 to 55 years. 

Commenting about the challege, Justice Nagarathna expressed said, 'Every thing people want to challenge? There is an intent behind it'

'Those who are before the Hon'ble Court must be in desperate need of a child at that age' the counsel for the petitioner told the Court. 

'They could have always adopted, right in the beginning when they knew they couldn't conceive. Adoption is also accepted nowadays, even single women are adopting now' Justice Nagarathna responded. Incidentally, the same bench yesterday issued notice on a petition challenging the provisions barring single unmarried women from surrogacy.

In October, the Court had allowed a woman with MRKH Syndrome, to undergo surrogacy using a donor egg. The Apex Court did so, by staying the operation of a recent amendment to the Surrogacy Rules, with respect to the petitioner. The amendment introduced in March 2023, prohibits the use of donor eggs for gestational surrogacy of an intending couple.

On a previous occasion, the Supreme Court had also observed that insisting that only the egg and the sperm of an intending couple can be used for gestational surrogacy is prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

A new amendment introduced in March 2023 to Form 2 read with Rule 7 of the Surrogacy Rules specifies that donor eggs cannot be used for gestational surrogacy of an intending couple.

The petitioners had challenged the amendment dated 14.03.2023 made to Form 2 under Rule 7 of the Surrogacy Rules, which is the form for Consent of the Surrogate Mother and Agreement for Surrogacy.

The recent amendment substituted paragraph 1(d) in Form 2 to ensure that a couple undergoing surrogacy cannot have donor gametes and both the male and female gamete must come from the intending couple. Prior to the substitution introduced in March 2023, paragraph 1(d) of Form 2 specified that methods of surrogacy treatment may include fertilisation of a donor egg by the sperm of the husband. However, this was changed to not allow donor gametes for couples choosing surrogacy.

The amendment also specifies that single women (widowed/divorced) must use self-eggs and donor sperms to avail the surrogacy procedure.

The petitioners challenged this contending that this was against Rule 14(a) of the Surrogacy Rules. According to Rule 14(a) a woman may opt for gestational surrogacy, if she has no uterus or an abnormal uterus.

Case Title: Arun Muthuvel V. Union of India, Writ Petition (Civil) No.756/2022 and connected cases.