SC questions age restriction for surrogacy
Tuesday said laws shouldn't frustrate the wish of childless couples, widows and divorcees to become parents through surrogacy.
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Instead, the laws should frustrate commercial surrogacy.
A bench of Justices B V Nagarathna and K V Viswanathan said present laws seem "harsh" to those wanting to take the surrogacy route to parenthood. The bench is examining provisions of Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.
The laws set age limits for intended parents and surrogate mothers. An intended mother must be aged between 23 and 50, and the intended father between 26 and 55 years.
Further, a surrogate mother must be married and between 25 and 35 years of age, have a biological child, and only act as a surrogate once in her lifetime.
If couple in their 50s, 60s can adopt, why can't they have surrogate child, asks SC
Laws allow single women (widowed or divorced) between ages 35 and 45 to pursue surrogacy. Appearing for the govt, additional solicitor general (ASG) Aishwarya Bhati defended the provisions, saying the age bar was needed to ensure a child's welfare and to prevent commercial surrogacy.
She said the limits were also set keeping in mind the genetic quality of gametes and urged the court to refrain from passing an interim order.
The bench, however, said rationality was lacking in the provision and asked why a single woman could not go for surrogacy. "If she is a widow or a divorcee then she needs it more. Look at the void in her life... Rationality and object are absent. Look how harsh it is," the bench observed.
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It said if a couple in their 50s and 60s can adopt, then why can't they have a surrogate child.
SC reserved its order on a plea of three petitioners, seeking its approval to go for surrogacy as they are age barred. They submitted that the laws came into force in 2022 but they started the process much earlier as they froze their embryo in 2012 and 2016, and that they should be allowed to pursue. Bhati argued that there were multiple reasons for freezing embryos, and it might not just be for surrogacy.
"Crystallisation of rights happens on implantation of the embryo in the uterus and not just on freezing of embryos," the ASG submitted. She said there are a large number of embryos that might have been frozen earlier but they cannot claim exemption from the law. The court, thereafter, reserved its order on the plea but hinted that it would protect only those who initiated the process before the laws came into force.
In one of the cases, the wife is 58 years old and the husband is 64.
In the second case, the wife is 53 and the husband 56. Multiple petitions have been filed challenging various provisions of the Acts. One of the petitioners submitted that the laws were discriminatory as it barred a single woman from surrogacy.
"The restrictions are wholly discriminatory and without any rational or reason behind it inasmuch as the said restriction is not only infringing fundamental rights of the petitioner, but also violative of the basic human rights of an individual to found a family as recognised by the UN and reproductive rights, which have been recognised as an aspect of personal liberty under Article 21," the plea said.
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