Reproductive Rights and Legal Limits

The Supreme Court is examining petitions challenging the age cap under the Surrogacy (Regulation) Act, 2021, particularly affecting couples who had initiated surrogacy procedures before the law came into force.

Reproductive Autonomy, Legislative Overreach, and Constitutional Validity

1. Legal and Statutory Context

• Surrogacy (Regulation) Act, 2021 and ART (Regulation) Act, 2021 jointly regulate assisted reproductive practices.
• The Acts allow only altruistic surrogacy, banning commercial involvement.
• Age limits imposed for intending couples:
  • Married women: 23–50 years
  • Married men: 26–55 years
  • Single women (widows/divorcees): Allowed only with judicial/medical certification.

2. Arguments Before the Supreme Court

• Violation of Article 14: Age-based exclusion is an unreasonable classification and lacks justification.
• Violation of Article 21: Reproductive autonomy is a part of the right to life and personal liberty.
• Lack of Grandfather Clause: The retrospective application of the Act to ongoing procedures violates legislative conventions of transitional justice.

3. Constitutional and Ethical Dimensions

• Discriminatory Restrictions: The law excludes unmarried women by choice while permitting widows and divorcees—raising questions under Article 15(1) (non-discrimination).
• Ethical Critique: Courts questioned the inconsistency of banning surrogacy at older ages while natural geriatric pregnancies remain unregulated.
• Medical Autonomy: Petitioners argue that fertility decisions should be based on medical advisories, not age-centric blanket bans.

4. Government’s Rationale and Judicial Concerns

• Government’s Stand: Age limits are based on medical safety and child welfare; intended to prevent misuse and commercial surrogacy.
• Judicial Concern: The Supreme Court questioned the blanket prohibition, stating that such harsh implementation defeats the Act’s spirit if genuine parenthood is curtailed.

Way Forward

• Judicial Scrutiny on Constitutional Grounds:The Act must be evaluated for proportionality, non-discrimination, and reasonableness of restrictions under the Constitution.
• Inclusion of Grandfather Clauses:The law should incorporate clauses to accommodate ongoing surrogacy processes initiated prior to its enactment.
• Widening Eligibility:Expand eligibility criteria to include unmarried women by choice and allow case-by-case medical evaluation rather than age-based exclusion.
• Medical Boards and Ethical Screening:Establish state-level ART ethics boards to evaluate individual surrogacy requests on health, intent, and support systems—not just age.