Surrogacy age limit exempt for pre-2022 cases

New Delhi

The Supreme Court on Thursday ruled that age restrictions under the Surrogacy (Regulation) Act, 2021, will not apply to couples who had started the surrogacy process before the law came into effect on January 25, 2022. The court clarified that if couples had reached the stage of embryo creation, freezing, or were ready to transfer embryos to a surrogate, the age limits would not be enforced.

Under the Act, the intended mother must be between 23 and 50 years old, and the intended father between 26 and 55 on the day of certification. The bench, comprising Justices B V Nagarathna and K V Viswanathan, delivered the verdict in response to pleas filed by three couples. It emphasized that before the Act, no statutory age restrictions existed, and couples were free to pursue surrogacy regardless of age.

The court stated that its decision does not challenge the validity of the Act or Parliament’s age criteria. The ruling is limited to cases where surrogacy had already commenced before the law was enforced. It further explained that embryo freezing signifies serious intent to pursue surrogacy, with only the surrogate mother’s involvement remaining.

Couples in similar situations who face age-related issues may approach the respective high courts rather than the Supreme Court. The detailed judgment is yet to be released. The court also reiterated the need to protect surrogate mothers’ rights and prevent exploitation, noting the prohibition of commercial surrogacy in India.