SC to examine age bar in India’s surrogacy laws

Team Udayavani, Jan 7, 2025, 5:18 PM IST

The Supreme Court on Tuesday agreed to examine on February 11 issues over the age bar for surrogate mothers and others under the laws.

A bench comprising Justices B V Nagarathna and Satish Chandra Sharma, which heard about 15 petitions challenging certain provisions of the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, asked the Centre to file its written submissions in the case.

Additional solicitor general Aishwarya Bhati, representing the Centre, said she would file the written submissions and the government would abide by the apex court’s directions.

The court underscored the need to pass an interim order in the case.

The 2021 surrogacy laws set age limits for intended parents and surrogate mothers. According to the law, the intended mother must be between 23 and 50 years of age, and the intended father must be between 26 and 55 years of age.

Further, the surrogate mother must be married and between 25 and 35 years of age, having a biological child, and only act as a surrogate once in her lifetime.

The laws also provide conditions to regulate surrogacy.

The top court had outlined the importance of safeguarding the interests of surrogate mothers, observing the need for a robust system to prevent exploitation, especially given commercial surrogacy was prohibited in India.

“There can be a database, so that the same lady is not exploited. A system must be there. Nobody is saying it’s a bad idea, but at the same time, it can be badly used,” the bench had said.

The court also discussed alternative mechanisms for compensating surrogate mothers and suggested a designated authority, instead of intending couples, for disbursing payments.

“You don’t have to pay directly to the lady. The department pays. You will have to deposit,” the bench proposed.

Bhati said the laws currently permitted only altruistic surrogacy, in line with the objective of banning commercial surrogacy, and assured the court of the government’s willingness to consider suggestions.

While altruistic surrogacy was commendable, the lack of adequate compensation mechanisms for surrogate mothers posed significant challenges, petitioners said.

One of the petitioners said the existing provisions only covered medical expenses and insurance and was inadequate.

Dr Arun Muthuvel, a Chennai-based infertility specialist, is the lead petitioner and has challenged the constitutional validity of the twin laws.

His plea said the laws were “discriminatory, exclusionary, and arbitrary in nature” which denied agency and autonomy in the discourse on reproductive justice, providing a state-sanctioned notion of the ideal family and restricting reproductive rights.

Other petitions raised similar concerns, such as the exclusion of unmarried women from the ambit of the surrogacy law and the restriction on oocyte donations under the ART Act.