The Supreme Court postponed its decision on petitions contesting the age limit for couples wanting to have a child via surrogacy

Surrogacy (Regulation) Act, 2021

Surrogacy: The Act describes surrogacy as a process in which a woman carries a child for a couple who plans to receive the child after it is born.

It is allowed solely for selfless reasons or for couples who have verified infertility or medical conditions.

Surrogacy is banned for commercial reasons such as sale, prostitution, or other types of exploitation.

Abortion: Termination of such a fetus is permitted only with the approval of the surrogate mother and the relevant authorities, and must comply with the Medical Termination of Pregnancy Act's stipulations.

Eligibility and Requirements for Couples: To have a child through surrogacy, a couple must obtain the necessary certificates of eligibility and essentiality.

The couple qualifies as 'eligible' if they have been married for five years, the wife is aged 23-50 years, the husband is between 26-55 years, and single women must be aged 35 to 45 years.

The couple should not have any children alive (biological, adopted, or surrogate).

A child who has mental or physical disabilities, or one affected by a life-threatening condition, has been excluded from the aforementioned standard.

The couple may obtain an ‘essential’ certificate if they have documented infertility in either partner verified by a District Medical Board.

They also need to provide insurance for 16 months for the surrogate mother, including any complications that arise after childbirth.

Requirements for becoming a surrogate: A surrogate must be a close relative of the couple, a married woman with at least one child, between 25-35 years old, and may serve as a surrogate only once.

She must also hold a certificate verifying her medical and psychological fitness for surrogacy.

Reasons Supporting the Age Restriction for Prospective Parents:

Child Welfare and Parenting Ability: Guarantees that parents possess the physical and mental skills needed to nurture a child during their developmental stages.

Regulatory Standardization: Ensures consistency and legal clarity for clinics and surrogacy agreements throughout India.

Ensures a Balance Between Reproductive Rights and Health Concerns: Women over 50 and men over 55 encounter increased risks of medical issues, genetic disorders, and age-associated fertility decline.

Advances Policy Objectives of Responsible Parenthood: Strengthens the belief that reproduction, whether natural or assisted, ought to occur within a responsible age range for the welfare of both the child and the parents.

Arguments Opposing Age Restrictions for Prospective Parents

Infringement on Reproductive Freedom: The age limits undermine the essential right to reproductive decision-making as stipulated in Article 21 of the Constitution (Right to Life and Personal Liberty).

Rigid and Unyielding Thresholds: The established age limits fail to consider personal health conditions, biological differences, or progress in medical research.

Excludes Late Weddings and Remarriages: Due to evolving social patterns, numerous individuals are choosing to marry or remarry in later stages of life, and the age restrictions unfairly omit these couples.

No Comparable Limitations in Natural Conception: The State allows couples to naturally conceive children at older ages but imposes age limits solely on ART and surrogacy, raising issues of unwarranted interference.

Route Forward

Although the age restrictions in the ART and Surrogacy Acts focus on medical safety and the well-being of the child, a more equitable, rights-oriented perspective is necessary.

The legislation might implement a flexible assessment for each case, considering medical fitness, psychological preparedness, and available social support.

This would maintain reproductive freedom, correspond with constitutional rights, and mirror changing social and medical circumstances.