The Supreme Court on Thursday ruled that the age limits under the Surrogacy (Regulation) Act of 2021 would not apply to couples who had already frozen their embryos before the Act came into force on January 25, 2022, according to a LiveLaw report. The court heard petitions from three couples challenging the law’s age restrictions, 23 to 50 years for women and 26 to 55 years for men arguing that these limits should not apply to them since they had preserved their gametes long before the Act became effective.What Does The Current Surrogacy Law State?India’s current surrogacy law allows only altruistic surrogacy while banning commercial arrangements. In simple words, altruistic surrogacy involves no monetary payment to the surrogate. Typically, the surrogate is a close family member or friend of the intended parents.Under the law, Indian married couples, as well as NRIs and OCI cardholders, can opt for surrogacy if they are medically infertile and meet the age and marriage criteria.Key provisions include:Only altruistic surrogacy is permitted.Commercial surrogacy is completely banned.Eligible couples include Indian, NRI, and OCI married couples.Couples must be infertile and married for at least five years.Single parents, foreigners, and LGBTQ+ couples are not allowed.Surrogates must be a close relative, aged 25–35, and married.Surrogates must have at least one biological child.Mandatory medical and psychological screening is required.Health insurance coverage is required for 36 months after delivery.All procedures are overseen by a District Medical Board.Age Bar Won’t Affect Couples Who Began Process Before 2021 Surrogacy ActThe petitions were filed through infertility specialist Arun Muthuvel, challenging the age-related amendments in the 2021 law. A bench comprising Justices B.V. Nagarathna and K.V. Viswanathan accepted the plea, stating:“If the couple had commenced the surrogacy process before January 25, 2022, and were at the stage of embryo freezing after extraction and before transfer to the surrogate, the age restriction under Section 4(iii)(c)(1) of the Act will not apply in these cases,” as per Live Law.The court added that, although only three couples had approached it, other couples in similar situations could also approach high courts to seek the benefits of this ruling. The court clarified that the judgment does not question the validity of the age bar or the law itself.Before the 2021 law, there were no age restrictions, and these couples were within the legally acceptable age range. Having frozen their embryos years earlier, they would have otherwise been unable to proceed with surrogacy due to the new age limits.The Union government opposed the petitions, arguing that age limits protect the welfare of the child, since older parents may not be able to meet the child’s needs. It maintained that the protection should apply only when the embryo is implanted in the surrogate, not at the embryo freezing stage.The court rejected this argument, noting that the decision to have a child is a personal choice of the couple and involves no third party. “The surrogacy process is considered to have commenced once the couple extracts gametes and freezes the embryo. At this stage, the couple has already expressed their intent to pursue surrogacy, the only remaining step is the involvement of the surrogate mother,” the bench explained.
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