Can't Rule On Challenge To Surrogacy Age Limit Without Reference To Circumstances Of Each Petitioner, Says Supreme Court

Previously, the Court, before posting the matter for hearing, had framed the following issues:

1. Whether the prohibition of commercial surrogacy under Sections 4(ii)(b) & 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?

2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as provided in Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?

3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as provided under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, is constitutional?

4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?

5. Whether individuals who initiated the process of availing surrogacy prior to the enactment of the Surrogacy (Regulation) Act, 2021 have any right to avail surrogacy in a manner beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?

Today, a bench of justices BV Nagarathna and Nongmeikapam Kotiswar Singh started hearing a plea from one woman, aged 52 years old, who had no child from the second marriage. Thus, the present plea pertained to aforementioned issue no. 2.

During the hearing, Justice Nagarathna expressed her concerns that these cases will have to be seen depending on facts of each case.

“We would have understood if they had said that women beyond 35 could not undertake surrogacy...we would have struck it down. This is the problem...we have to see the object. Without specific facts of each case, we cannot say point blank that anybody beyond 50, why cannot they have (surrogacy)” she said.

Justice Nagarathna also said that if the petitioner could not have conceived in the usual way as she was not menstruating, it cannot be said that “even if I am 60 or 70, one fine day, I will decide to have surrogacy.”

At the outset, Advocate Mohini Priya, appearing for the petitioner, submitted that the Act is prospective in application. Elaborating, she said that even if couples have frozen their embryos, they cannot use them for IVF or surrogacy. Further, clinics are refusing straightaway because of the stringent provisions.

At this stage, Justice Nagarathna said:

“If she is not menstruating in 52, in the usual course, she would not have conceived the child. What she cannot do in the natural course, she is now trying to do in an unnatural way and that too at 52. These are the things which we should see….we would have to see the object (for restricting the age)…. we cannot say that out of the that some age has been picked up by the parliament is arbitrary”

At this stage, Advocate Mohini Priya said that the Parliamentary Standing Committee reports did not discuss the age limit. She also relied on studies that revealed an elderly couple has a better capacity to raise a child socially and economically.

However, Justice Nagarathna said that some unfortunate couples become patients by age 50. Priya apprised the Court that the intending couple is healthy in the present case.

Notwithstanding, the Court made it clear that it cannot strike down rules in a vacuum and ordered the parties to prepare a factual background chart for each of the petitioners. The Court listed the matter for hearing on September 10.

For a detailed background, click here

Case Title: Arun Muthuvel v. Union of India | W.P. (Civil) No. 756 of 2022 (and connected matters)