Supreme Court To Examine Age Bar In India’s Surrogacy Laws

The Supreme Court on Tuesday agreed to hear, on February 11, a batch of petitions challenging key provisions of the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, particularly the age limits for surrogate mothers and intended parents.

A bench of Justices B.V. Nagarathna and Satish Chandra Sharma directed the Centre to submit its written arguments before the next hearing.

Representing the Centre, Additional Solicitor General Aishwarya Bhati assured the court that the government would comply with its directives and file the required submissions. The bench emphasized the urgency of passing interim orders in the case, highlighting the need to balance reproductive rights with safeguards against exploitation.

The 2021 surrogacy laws mandate strict criteria for intended parents and surrogate mothers. The intended mother must be between 23 & 50 years of age, while the intended father must be between 26 and 55. A surrogate mother must be married, aged between 25 and 35, have a biological child, and can only serve as a surrogate once in her lifetime. The laws also permit only altruistic surrogacy, barring any form of commercial surrogacy.

The court highlighted the necessity of creating a system to prevent surrogate exploitation. “A database can ensure that the same woman is not exploited repeatedly. While surrogacy is not inherently bad, it can be misused,” observed the bench.

Additionally, the judges proposed establishing a designated authority to handle compensation for surrogate mothers, suggesting, “You don’t have to pay directly to the lady; the department can disburse the amount after the couple deposits it.”

Bhati acknowledged the court’s concerns but defended the altruistic surrogacy model, emphasizing that it aims to eliminate commercial interests. However, petitioners argued that the absence of a proper compensation framework posed a significant problem, as current provisions only cover medical expenses and insurance, leaving surrogate mothers financially vulnerable.

The lead petitioner, Dr. Arun Muthuvel, an infertility specialist from Chennai, challenged the constitutional validity of the laws, describing them as “discriminatory, exclusionary, and arbitrary.” His plea asserted that the legislation denies reproductive autonomy and enforces a rigid, state-defined concept of family, restricting reproductive choices.

Several other petitioners raised related concerns, including the exclusion of unmarried women from surrogacy and the ban on oocyte donations under the ART Act. The court’s decision in this matter is expected to significantly impact the landscape of reproductive healthcare and surrogacy in India.

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