Surrogacy law based on science, says Delhi HC

The Delhi high court on Thursday said the law which prescribes age restrictions for couples intending to avail surrogacy was based on science, adding that permitting “overage couples” to go ahead with the procedure might have serious consequences on the child.

The court was considering a plea filed by a couple who challenged a provision of the Surrogacy Regulation Act, 2021, that only allows women between the ages of 23 and 50 and men between the ages of 26 and 55 to avail surrogacy. The couple was denied permission as the husband was 56 years old on the date of grant of certificate of medical indication necessitating surrogacy.

The high court’s remarks came at a time when the Supreme Court is already considering a challenge to the Act in a series of public interest litigations filed by IVF specialist Arun Muthuvel, along with several others, questioning provisions under the Surrogacy Act and Assisted Reproductive Technology (Regulation) Act, 2021 for being discriminatory against men and women based on their age, marital status and sexual orientation.

In January this year, the Centre told the top court that amendments to rules under the Surrogacy Act restricting married couples from getting donor gametes are under “active reconsideration”.

To be sure, the high court in December last year had also remarked that the Centre’s notification banning donor gametes had some rationale, adding that the Act to regulate surrogacy was formulated to curb its exploitation and prevent India from becoming “a country of renting wombs”.

The couple in the present case contended that the state-level medical board, tasked with the issuance of certificates, arbitrarily rejected their application ignoring that the woman, 47, was within the stipulated age. It was also added that the Centre’s notification restricting married couples from getting donor gametes disentitled a wife who could neither produce eggs nor support gestational pregnancy from availing surrogacy services in India.

“Strict compliance is required. This is based on science. I don’t know whether science permits this after 55. Please understand the consequences... for the child. The child will suffer from genetic defects... This condition has to be fulfilled is that the age bracket has to be satisfied by both...,” a bench led by acting chief justice Manmohan told the counsel who appeared for the couple.

The bench also comprising justice Manmeet Pritam Singh Arora, however, asked the ministry of health and family welfare to file its response indicating the rationale behind the restriction.

On Thursday, the ministry, appearing through advocate Arunima Dwivedi, submitted that there was a rationale behind the age limit. “Everything has to be seen in terms of the future of the child. At the age of 60, parents will not be able to take care of the child as they would be at an early age,” said Dwivedi.