Supreme Court To Hear Petitions Challenging Upper-Age Limit In Surrogacy Laws On February 11

The Supreme Court is set to hear a batch of petitions challenging the Surrogacy (Regulation) Act, 2021 and Surrogacy (Regulation) Rules, 2022 on the specific issue of upper-age limited and cases where the surrogacy process has already commenced for interim relief.

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. The Union of India has been asked to file their written submissions.

A bench of Justices B.V. Nagarathna and Satish Chandra Sharma passed the order after hearing the issues briefly. It was informed to the Court that prior to the enforcement of the 2021 Act, there were cases where the intending couple had already initiated the surrogacy process. They will be at a loss if the matter is not heard soon.

It was also stated that there are judgments of the high courts which have interpreted the provisions of the 2021 Act as prospective and therefore, given the benefit to those couples that had initiated the process.

The other side has opposed this plea stating that any benefit contrary to the provisions cannot be granted.

Two years ago, when the matter had come up before the bench of Justices Nagarathna and Ujjal Bhuyan, Justice Nagarathna orally expressed reservations on the plea by petitioners wanting to have a child to surrogacy beyond the upper-age limited prescribed under the legislation.

"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.

Before the Supreme Court, petitions have been filed challenging the 2021 legislation and the 2022 Rules along with other issues. In the main petition (filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocates Mohini Priya and Ameyavikrama Thanvi), the following larger issues have been raised:

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?

Case Details: ARUN MUTHUVEL v. UNION OF INDIA AND ORS.,W.P.(C) No. 756/2022 and others

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