Surrogacy in India SC Questions Age Restriction For Surrogacy

Introduction 

• The Supreme Court has recently reserved its verdict in petitions challenging the age cap for couples seeking to have a child through surrogacy, especially those couples who had started the process before the current law on this matter was enacted by Parliament.
•  The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy.

What is The Legal Framework Governing Surrogacy in India? 

• • India’s surrogacy laws have undergone a significant transformation with the introduction of the Surrogacy and Assisted Reproductive Technology (ART) Regulation Act, 2021. 
  • This legislative move aims to regulate surrogacy practices, eliminate commercial exploitation, and ensure the ethical and medical safety of all parties involved. 
  • Purpose and Key Objectives of the Surrogacy and ART Regulation Act:   While the Surrogacy Act governs altruistic surrogacy arrangements, the ART Act primarily regulates assisted reproductive technology clinics / banks, and the use of gametes and embryos. It lists down the registration process, allots responsibilities, and imposes penalties for any violations. The core objective of the Surrogacy and ART Regulation Act is to ban commercial surrogacy and encourage only altruistic surrogacy, where a surrogate carries the child for intending parents without monetary compensation beyond medical expenses. This law aims to promote ethical practices and prevent the commodification of reproduction. The new law emphasizes the following:
    • Prevention of Commercial Surrogacy: The law ensures that surrogacy cannot be treated as a commercial transaction but is permitted only under altruistic terms.
    • Regulation of ART Practices: Assisted Reproductive Technology (ART) centers, often used for surrogacy, are now subject to regulation and oversight to ensure they adhere to medical and ethical standards.

• Eligibility Criteria for Surrogacy under the 2021 Act: The law sets strict eligibility criteria for couples and individuals wishing to opt for surrogacy:

• Age Limit for Intending Parents

• • • Women: Between 23 and 50 years of age
    • Men: Between 26 and 55 years of age
    • Single Women: Only widows and divorcees aged 35–45 are eligible to opt for surrogacy.

• Other Requirements for Surrogacy:

• • • Certificate of Essentiality: Couples or individuals seeking surrogacy must provide medical proof of infertility.
    • Surrogate Insurance: Surrogates are entitled to health insurance that covers the risks associated with the pregnancy and childbirth.

• Purpose Behind the Legal Framework: The Surrogacy and ART Regulation Act seeks to address several critical concerns:

• • Preventing Commodification: Surrogacy is regulated to avoid the commercial exploitation of reproductive services, ensuring it is a process motivated by compassion rather than profit.
  • Medical Necessity: Surrogacy is permitted only when medically advised as necessary for the intending parents, making the process medically driven rather than commercially motivated.
  • Health and Welfare: The law puts the health of both the child and the surrogate mother at the forefront, requiring thorough medical oversight and appropriate insurance coverage for surrogates.

What was the Case Before the Supreme Court?

• Petitioners’ Arguments Against the Law:

• Impact of Retroactive Provisions on Ongoing Fertility Treatments: One of the main arguments presented by the petitioners is that many couples started fertility procedures before the Surrogacy and ART Regulation Act came into force in January 2022. 

• However, the new age limits introduced by the law disqualify them mid-process. For instance, a couple aged 62 and 56, who had already lost their child in 2018, went through a failed embryo transfer in 2022, only to be disqualified due to the new age cap. This retroactive disqualification creates an undue hardship for those already undergoing fertility treatments.

• Violation of Article 14: Arbitrary Classification:

• • • The petitioners argue that the law violates Article 14 of the Indian Constitution, which guarantees the Right to Equality. The age restriction and disqualification of couples who began their fertility procedures before the law was enacted are seen as an arbitrary classification. 
    • According to the petitioners, the law unfairly differentiates between individuals based on the timing of their fertility treatment and does not offer equal protection under the law.

• Violation of Article 21: Infringement on Reproductive Autonomy:

• • • Additionally, the petitioners contend that the law violates Article 21 of the Constitution, which safeguards an individual’s personal liberty and right to life. They argue that the new law infringes upon their reproductive autonomy, as it imposes restrictions on their ability to access surrogacy and ART treatments based on arbitrary age limits. 
    • The petitioners argue that their right to make reproductive choices should not be constrained by these provisions.

• Lack of Transitional Protection: No Grandfather Clause:

• • • Another key issue raised is the absence of a grandfather clause in the law. The petitioners argue that there is no transitional protection for couples who began fertility procedures before the law came into force. 
    • This lack of protection means that these individuals, who were previously eligible for surrogacy, are now unfairly excluded from its benefits due to changes in the law.

• Exclusion of Unmarried Single Women:

• • Apart from the arguments related to age limits, petitioners have also raised concerns about the law’s exclusion of unmarried single women from eligibility for surrogacy. They argue that this exclusion is arbitrary and discriminatory. 
  • The law’s definition of single women — which only includes widows and divorcees — is being challenged under constitutional law. Although this issue is not part of the current petitions, it remains a broader concern regarding the law’s approach to reproductive rights.

 Supreme Court’s Observations and the Government’s Defense of Surrogacy Laws in India

• Government’s Defense: The Government’s stand on the issue primarily focuses on the health and safety concerns related to surrogacy. Here are the key points raised in the defense:

• Age Limits Based on Natural Reproductive Timelines: The Government argues that the age restrictions set by the Surrogacy and ART Regulation Act, 2021 are based on natural reproductive timelines. It claims that advanced parental age, especially in women, poses significant health risks for both the child and the parents. The idea is to align the law with medical safety standards, ensuring that surrogacy is used in medically appropriate scenarios.

• Health Risks to Children and Parenting Longevity: The Government’s defense also highlights that older parents may face challenges in providing long-term care for the child. Advanced parental age can result in higher health risks for the child during pregnancy and birth, including complications like genetic disorders, premature birth, and low birth weight.

• Alignment with International Best Practices: The Government defends the law by pointing out that the age limits and other provisions are in line with international best practices. Many countries with established surrogacy laws have similar age restrictions to safeguard the health of both the child and the intended parents.

• Supreme Court’s Counterpoints: While the Government’s defense emphasizes medical safety, the Supreme Court has raised critical questions about the law’s underlying logic and its potential consequences:

• “Why Bar Surrogacy When Natural Geriatric Pregnancies Are Allowed?”: One of the key questions raised by Justice Nagarathna during the hearings was why surrogacy should be barred for older couples when natural geriatric pregnancies are allowed. This pointed to a perceived inconsistency in the law, as natural pregnancies for older women may carry the same risks as surrogacy pregnancies, yet there are no age limits for natural conception.

• Lack of Compassion in the Law: The Court also emphasized that the law seemed harsh and lacked compassion. Justice Nagarathna remarked, “Stop, no children! Look how harsh it is.” The statement underscores concerns that the law could potentially deny genuine parenthood for couples who wish to become parents through surrogacy, especially when no such restrictions are imposed on natural reproduction.

• Questioning the Rational Nexus of Age Limits: Another concern raised by the Court was the rational nexus between the age cap and the intent of the Surrogacy Act. The Court questioned whether the age restrictions effectively served the law’s stated purpose of regulating surrogacy, particularly when compared to natural conception, which may involve similar health risks.

• Regulating Commercial Surrogacy, Not Denying Parenthood: The Court underscored that the objective of the Act was to regulate commercial surrogacy and prevent exploitation in the industry. It stressed that the intended purpose was not to deny genuine parenthood but to safeguard the health and well-being of the mother, child, and intended parents by regulating the commercial aspect of surrogacy.

Conclusion 

• The Surrogacy (Regulation) Act, 2021 seeks to protect women from exploitation, but it has been criticized for not fully addressing the concerns of surrogates, particularly regarding compensation and medical risks. 
• While the law’s prohibition of commercial surrogacy addresses important ethical issues related to the commodification of reproductive services, there is a need for a more comprehensive approach that considers fair payment structures and protection of surrogate rights. 
• Striking the right balance between ethical integrity and fair compensation is vital for ensuring the success and effectiveness of surrogacy regulations in India, safeguarding the interests of both surrogates and intending parents.