Why in the News?

The Supreme Court of India has reserved its judgment (i.e. final decision is pending) in a set of petitions challenging the age-related eligibility criteria under the Surrogacy (Regulation) Act, 2021.

These cases involve couples who had initiated the surrogacy process prior to the enactment of the law on January 25, 2022, but are now disqualified due to the new age limits.

About the Surrogacy (Regulation) Act, 2021

• Objective: To regulate surrogacy in India, prohibit commercial surrogacy, and promote ethical, altruistic surrogacy based on medical necessity.
• Scope:
  • Regulates the entire process of surrogacy, including eligibility, certification, and the role of surrogate mothers.
  • Works in conjunction with the Assisted Reproductive Technology (Regulation) Act, 2021.

Key Provisions:

• Type Permitted: Only altruistic surrogacy (unpaid surrogate mother) is allowed; commercial surrogacy is banned.
• Eligibility Criteria for Intending Couples:
  • Legally married for at least 5 years.
  • Woman must be 23–50 years of age; man must be 26–55 years.
  • Must not have any living biological, adopted, or surrogate child.
• Eligibility for Single Women:
  • Only widows or divorcees between 35–45 years are eligible.
  • Unmarried women are not eligible (currently under challenge).
• Surrogate Mother Criteria:
  • Must be a close relative, married, and have at least one biological child.
  • Age: 25–35 years.
• Certification Requirement: A Certificate of Essentiality is required, including:
  • Proof of infertility
  • Court order for parentage and custody
  • Insurance for the surrogate mother
• Penalties: Commercial surrogacy invites imprisonment (up to 10 years) and fines (up to ₹10 lakh).
• Regulatory Structure:
  • National Surrogacy Board at the central level.
  • State Surrogacy Boards at the state level.

Issues Highlighted by the Supreme Court:

• No Transitional Provision: The Act lacks a grandfather clause to protect couples who began the surrogacy process (e.g., embryo freezing) before the law came into effect in January 2022.
• Rigid Age Limits: The court questioned the fairness of disqualifying couples solely on age grounds, especially when natural pregnancies at older ages are not prohibited.
• Violation of Fundamental Rights: Petitioners argued the age restrictions violate Article 14 (equality before law) and Article 21 (right to reproductive autonomy and personal liberty).
• Exclusion of Unmarried Women: The law permits only widows or divorcees (35–45 years) to pursue surrogacy, which the court noted may be arbitrary and discriminatory.
• Law’s Intent vs. Impact: The court stressed that while the law aims to prevent commercial surrogacy, it should not unreasonably prevent genuine intending parents from having children.

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