Individuals Already Undergoing ART Process Prima Facie Can’t Be Disqualified Due To Age Bar Under Surrogacy Act 2021: Delhi High Court

The Delhi High Court has prima facie observed that individuals who have already undergone Assisted Reproductive Technology (ART) process prima facie cannot be disqualified due to the age bar prescribed for intending couples under the Surrogacy (Regulation) Act, 2021.

A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula said that Section 4(iii)(c)(I) of the 2021 Act, which imposes an age restriction in respect of intending parents, cannot be applied retrospectively.

“Prima facie, the impugned provision cannot be applied retrospectively, thereby disqualifying individuals who had already initiated or undergone the ART process, in accordance with the prevailing laws,” the bench said.

The provision states that the surrogacy procedure can be initiated only if the intending couple are married and are between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification.

The bench made the observations while allowing a couple to continue with the gestational surrogacy treatment, the procedure for which was initiated before commencement of the 2021 Act, observing that the impugned provision should not be interpreted as an obstacle to their pursuit of surrogacy.

The couple, nearly 51 years of age, was aggrieved due to being precluded from commissioning a surrogacy due to the age bar introduced through the 2021 Act, despite having initiated the process before the date of its enforcement.

Granting interim relief to the couple, the court directed that subject to fulfilment of all other conditions under the 2021 Act and other applicable laws, an eligibility certificate be issued to them, enabling them to avail the surrogacy procedure from the embryos already created through their IVF treatment.

“As discussed above, Petitioner No. 1’s egg retrieval and freezing were done in 2016-17, and Petitioner No. 2’s sperm were frozen on 29th November, 2021, before the enforcement of SR Act and ART Act. Furthermore, Petitioners intend to commission surrogacy through a woman who fulfils the eligibility criteria prescribed under Section 4(iii)(b) of SR Act,” the court said.

The bench added that while it deliberates on the challenge to the validity of the provision, it is inclined to grant interim relief to the couple considering their situation and the peculiar facts and circumstances of the case.

“It is imperative to acknowledge the profound emotional and psychological distress endured by the Petitioners as a consequence of their present predicament. Their inability to proceed with the surrogacy procedure has placed them in a state of anguish and uncertainty, deeply affecting their mental and emotional well-being. Such circumstances underscore the pressing need for interim relief and compassionate consideration,” the court said.

It further recognized the paramount importance of relieving the couple from the “agonizing wait” and granting them the opportunity to pursue their “aspiration of parenthood” especially when the embryos were created during a time when legal constraints were not in effect.

The court directed the Union Government to file its response to the couple’s plea challenging the validity of Section 4(iii)(c)(I) of the 2021 Act and listed the matter for hearing on December 15.

Counsel for Petitioners: Mr. Nalin Tripathi and Mr. Nischal Tripathi

Counsel for Respondents: Mr. Chetan Sharma, ASG with Mr. Amit Gupta, Mr. Saurabh Tripathi and Mr. Vikramaditya Singh, Advocates for UOI. Ms. Monika Arora, CGSC with Ms. Prakriti Bandhan and Mr. Subhrodeep Saha, Advocates for UOI