India's Supreme Court clarifies surrogacy age limit law

The Indian Supreme Court held that legal limits on the age of intended parents via surrogacy should not apply to those who froze embryos before the regulations were introduced.

The 2021 Surrogacy (Regulation) Act introduced age restrictions for intended parents through surrogacy of 23-50 for women and 26-55 for men, and came into effect in January 2022. The Supreme Court heard applications involving three couples in their 50s and 60s who argued that the age restrictions should not apply because they had frozen embryos intended for surrogacy before the Act came into force. The court concluded that the couples had commenced the surrogacy process before 2022, and that applying the restrictions retrospectively would therefore violate their rights to reproductive autonomy under Article 21 of the constitution.

'The rule against retrospective operation of statutes applies... in order to preserve the rights of intending couples,' said Judges Nagarathna and Viswanathan. 'At the time that intending couple numbers one to three... generated and froze their embryos, they had qualified for surrogacy under the prevailing law. Thus, they came to possess a right to surrogacy as a part of reproductive autonomy and parenthood.'

The Indian government opposed the applications and argued that exemptions should only be applied where embryos have already been transferred to a surrogate. However, the court disagreed, arguing that creating embryos was final stage expected from intended parents.

The judges said: '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.'

The Indian government also argued that age limits are directly tied to protecting child welfare, ensuring that parents can fulfil their child's long-term needs. The court rejected this interpretation, observing that similar constraints do not exist for procreation or adoption. The judges stated: 'It is not for the State to question the couple's ability to parent children after they had begun the exercise of surrogacy when there were no restrictions on them to do so.'

The court further noted that comparably placed couples could approach High Courts for similar relief but clarified that the 2021 restrictions themselves remain valid. In addition to the age limits for intended parent couples, the Act permits surrogacy for single women aged between 35 and 45 if they are widowed or divorced. The Act also stipulates that surrogates must be married, aged between 25 and 35 years old, have at least one biological child of their own, and only serve as a surrogate once.

The issue of older people becoming parents via surrogacy made headlines in the UK earlier this year, when the High Court granted legal parenthood to a British couple in their 70s after their surrogacy agreement was arranged in the USA (see BioNews 1291). In contrast to India, there is no UK age limit except that intended parents must be over 18 to apply for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.