Age bar under Surrogacy Act not applicable to pre-2021 cases: SC

Couples who began their surrogacy process before the enactment of the surrogacy law can proceed with surrogacy despite being over the age limit set by the law, the Supreme Court ruled on Thursday.

“We have held that if the surrogacy process has begun before the Act and they had frozen embryos or were in the process of transferring embryos to a surrogate mother, in that case, the age restriction will not apply,” a Bench of Justice BV Nagarathna and Justice KV Viswanathan said, allowing petitions filed by three couples.

If any other similarly placed couple wished to avail remedies in terms of this judgment, such a couple may approach the high court concerned to seek appropriate orders, Justice Nagarathna said, pronouncing the verdict.

Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 prescribes that the legally woman must be between 23 and 50 years of age and her husband between 26 and 55 years in order to avail benefits of surrogacy.

The Bench said the right to surrogacy of such couples crystallised when they had their embryos frozen under the law prevailing at that time and the age restriction under the Act could not apply retrospectively to such couples.

Before the Surrogacy Act came into force there was no age limit as a part of reproductive autonomy and parenthood, said the Bench which had reserved its order on the contentious issue on July 29.

India