Age Restriction On Surrogacy: Supreme Court Allows Surrogacy For Couples Who Began Process Before THIS Year

The Supreme Court ruled on Thursday that the age limits under the Surrogacy (Regulation) Act, 2021, will not apply to couples who had already started the surrogacy process before the law came into force. The court stated that couples who froze embryos before the 2021 Act did so under the existing legal framework that had no age restrictions.

Therefore, their rights to pursue surrogacy cannot be blocked by new age-related provisions introduced later.

A bench of Justice BV Nagarathna and Justice KV Viswanathan held that the rights of intending parents to continue surrogacy became valid when they froze embryos under the earlier system.

The judges noted that at that time, there were no binding age conditions. “At the time the couple froze embryos, they acted under parental autonomy,” Justice Nagarathna observed. 

She added that before 2021, surrogacy laws did not restrict age, allowing all eligible couples to proceed freely without such limitations.

Court Reserves Judgment in August, Rules in Favour of Petitioners

The bench had reserved its judgment in August after hearing petitions from couples who had begun the surrogacy process before the 2021 Act.

These couples were later stopped from continuing because they had crossed the upper age limit set by the new law. The Supreme Court stated that such retrospective application was unfair and violated the couples’ reproductive rights.

It ruled that any couple who had created embryos or initiated the process before January 25, 2022, can continue without facing new age restrictions.

The age limits were: 

Wife: Must be between 23 and 50 years of age.

Husband: Must be between 26 and 55 years of age.

These limits apply to intending couples (those seeking to become parents through surrogacy).

Additionally, for surrogate mothers, the Act sets these conditions:

• She must be a married woman with at least one biological child of her own.

• Her age must be between 25 and 35 years.

• She can act as a surrogate only once in her lifetime.

Court Says Parenthood Is a Matter of Personal Autonomy

Justice Nagarathna observed that the right to become a parent is an essential part of personal autonomy. She said the State cannot question the parenting abilities of couples solely based on age when the surrogacy process had already started earlier.

“The couple approached surrogacy due to medical reasons, and denying them now on the basis of age would be unjust,” she stated. The court clarified that the judgment does not question Parliament’s authority but protects the rights of couples affected by retrospective application.

The Centre had argued that the age limit aimed to protect the welfare of children born through surrogacy, claiming that older parents might not meet a child’s long-term needs.

However, the bench rejected this reasoning. The court noted that no such limits apply to couples conceiving naturally, making the argument inconsistent. “Although the Centre linked the age limit to a child’s welfare, the same freedom exists for natural conception. Therefore, we cannot accept this argument,” the court stated, reinforcing the principle of equality.

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