Background – The Legal Framework on Surrogacy in India

India has been a global hub for assisted reproductive technologies (ART) and surrogacy for many years. To address ethical concerns, prevent exploitation, and regulate practices, Parliament enacted two laws in 2021:

• The Assisted Reproductive Technology (Regulation) Act, 2021
• The Surrogacy (Regulation) Act, 2021

These Acts, effective from January 2022, prohibit commercial surrogacy and allow only altruistic surrogacy (where a woman volunteers without financial compensation, apart from medical expenses and insurance).

Key Provisions:

• Age limits:
  • Married woman (intending mother): 23–50 years
  • Married man (intending father): 26–55 years
  • Single women: only widows or divorcees aged 35–45 years
• Certificate of essentiality: Proof of infertility, parentage order, and insurance for the surrogate are mandatory.
• Purpose of the law: To prevent commodification of reproduction, ensure surrogacy is used only for genuine medical necessity, and safeguard the health of both surrogate and child.

The Case before the Supreme Court

Recently, the Supreme Court reserved judgment in a set of petitions challenging the age caps under these Acts.

Petitioners’ Concerns:

• Many couples had already begun fertility procedures before January 2022, but became ineligible midway due to the new law.
• Example: A couple aged 62 (husband) and 56 (wife) lost their only child in 2018, started fertility treatment in 2019, but after a failed embryo transfer in 2022, they were barred from further surrogacy attempts due to age restrictions.
• They argue that applying the age limits retrospectively is unfair, as no “grandfather clause” was provided to protect ongoing cases.

Constitutional Arguments:

• Article 14 (Right to Equality): Age-based exclusion is arbitrary.
• Article 21 (Right to Life & Personal Liberty): Reproductive autonomy and the right to family are integral to personal liberty.
• Discrimination against unmarried women: The law only allows widows and divorcees to access surrogacy, excluding single, never-married women.

Government’s Stand

• Age limits reflect natural reproductive timelines and medical safety.
• Advanced parental age poses risks:
  • Higher complications for the surrogate.
  • Genetic/epigenetic risks for the child.
  • Concerns about parents’ ability to provide long-term care.
• Provisions align with international best practices in reproductive health.

Supreme Court’s Observations

The Bench, led by Justices B.V. Nagarathna and K.V. Viswanathan, raised critical questions:

• Why prohibit surrogacy at advanced ages when natural late pregnancies are not barred?
• The intent of the law was to regulate commercial surrogacy, not to deny genuine parenthood.
• The absence of compassionate transitional provisions is problematic: “Stop, no children! Look how harsh it is,” remarked Justice Nagarathna.

Ethical and Social Dimensions

• Balancing Autonomy and State Regulation:Reproductive choice vs. state’s role in safeguarding health and welfare.
• Rights of Single Women:Exclusion of unmarried women raises concerns of gender equality and individual autonomy.
• Best Interests of the Child:Child’s welfare, upbringing, and stability are central concerns in surrogacy regulation.
• Medical Ethics:Need to prevent exploitation of surrogates and maintain ethical standards in ART practices.

Broader Constitutional Questions

• Right to Parenthood as a Fundamental Right? The Court has earlier recognised reproductive rights as part of Article 21.
• Equality vs. Reasonable Classification: Can the state justify different treatment based on age or marital status?
• Legislative Gaps: The lack of a grandfather clause highlights issues in legislative foresight and transitional justice.

Conclusion

The Supreme Court’s verdict will be pivotal in shaping India’s approach to assisted reproduction. At stake is the balance between medical ethics, legislative intent, and individual reproductive rights.

The outcome may not only determine the fate of couples stuck mid-process but could also set precedents for:

• Expanding reproductive rights,
• Recognising unmarried women’s autonomy
• Ensuring compassionate legal transitions in sensitive health matters.