SC: Age bar under surrogacy law won’t apply if embryos were frozen before Jan 2022

Supreme Court was hearing applications moved by 3 couples who challenged the age bar of 23 to 50 years for women and 26 to 55 years for men under the Surrogacy Regulation Act, 2021

New Delhi: The Supreme Court (SC) on Thursday held that the age bar for couples under the Surrogacy Regulation Act, 2021, will not apply if the husband and wife had frozen their embryos and commenced the process of surrogacy prior to the commencement of the law on January 25, 2022.

The court held that in the three cases, the couples were in the last stage expected from the intended couple, as all remaining stages involved the surrogate mother. (Representative photo)

The court was hearing applications moved by three couples who challenged the age bar of 23 to 50 years for women and 26 to 55 years for men under the Act, arguing that the restrictions should not apply to them as they had frozen their gametes long before the Act came into force.

These applications were filed in a petition submitted by infertility specialist Arun Muthuvel, who has challenged the amendments to the 2021 law.

The bench of justices B.V. Nagarathna and K.V. Viswanathan accepted their plea and said, “If the couple has commenced the surrogacy process prior to January 25, 2022 and were at the stage of freezing of embryo after extraction and transfer of embryo to the surrogate mother, the age restriction under Section 4(iii)(c)(1) of the Act will not apply in the present cases.”

The court added that though only three couples had approached the court, any other couple in a similar situation can approach high courts to seek the benefit of this judgment. It also clarified that the validity of the age bar or the law has not been decided on.

The bench said that prior to the law being introduced, there was no age restriction, and the couples were well within the age prescribed by law. However, having frozen their embryos long back, they were now disentitled to have children through a surrogate mother.

The Union government had opposed the applications, claiming that the age bar was placed keeping the child’s welfare in mind, as parents are unable to cater to the child’s needs at an advanced age. It argued that the protection can only be offered in cases where the embryo is implanted in the womb of the surrogate mother and not at the stage of freezing of embryo.

The court rejected the argument and said that the decision to have a child is a personal decision of the couple and involves no third person. “Commencement of surrogacy process to determine when the age bar will apply takes place after the couple have extracted their gametes and frozen embryo. Freezing of embryos is the stage where the couple have manifested their intention (for surrogacy) and all that remains was the involvement of the surrogate mother,” it added.

The court held that in the three cases, the couples were in the last stage expected from the intended couple, as all remaining stages involved the surrogate mother.