India has introduced a comprehensive legal framework to regulate assisted reproductive technologies (ART) and surrogacy through the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. These laws were enacted with the objective of preventing the exploitation of women, eliminating commercial surrogacy, and promoting ethical medical practices. Together, they permit only altruistic surrogacy and set strict eligibility conditions for intending parents and surrogate mothers.

However, the implementation of these laws has given rise to practical challenges. The Supreme Court of India has recently reserved its verdict on a set of writ petitions that challenge the age restrictions placed on couples seeking to have children through surrogacy. The challenge is based on the assertion that several couples had already begun their surrogacy or fertility treatment before the law was enacted, but were rendered ineligible due to retrospective application of the new Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.

These petitions highlight concerns related to reproductive autonomy, the right to equality, and the need for regulatory sensitivity during legal transitions. The matter is currently under judicial review, and the Court's observations have brought attention to the human impact of rigid regulatory frameworks. This issue has become a significant point of discussion in the broader context of health policy, constitutional rights, and social justice in India.

Eligibility Criteria under the Surrogacy Law

The law clearly specifies the age and marital status of individuals who can opt for surrogacy:

For Intending Married Couples:

• Woman: Must be between 23 and 50 years
• Man: Must be between 26 and 55 years

For Single Women:

• Must be either a widow or divorcee
• Age bracket: 35 to 45 years

Additionally, couples must obtain a Certificate of Essentiality, which includes:

• A medical report proving infertility;
• A court order establishing parentage and custody of the child;
• An insurance cover for the surrogate mother.

Importantly, the law excludes unmarried women and those outside these age ranges from surrogacy access — a point which has come under serious legal scrutiny.

The Supreme Court Case: What Is Being Challenged?

Multiple couples have approached the Supreme Court through writ petitions, stating that they had already initiated their fertility or surrogacy process before the 2021 Act came into force. The law, in its current form, does not contain a transitional clause to accommodate such cases.

One particularly compelling case involves a couple who:

• Lost their only child in 2018;
• Began fertility treatment in 2019;
• Faced delays due to the COVID-19 pandemic;
• Underwent unsuccessful embryo transfer in early 2022;
• Were ineligible for further treatment due to crossing the age limit (the husband is now 62, wife 56).

The couple claims that:

• The law’s retrospective application is unjust;
• Their ongoing medical procedure has been abruptly halted, despite them starting the process in good faith;
• The Act fails to distinguish between genuine and exploitative cases.

Key Constitutional Issues Raised by Petitioners

The petitioners argue that the law violates their Fundamental Rights under the Indian Constitution:

1. Article 14 – Right to Equality

• The law imposes arbitrary age-based restrictions without considering individual medical viability.
• It creates an unreasonable classification, treating those who began treatment earlier the same as new applicants.

2. Article 21 – Right to Life and Personal Liberty

• Reproductive autonomy and the right to become a parent form an integral part of personal liberty.
• The law's blanket approach curtails autonomy, particularly for older or single individuals who may still be medically capable.

Arguments by the Government

• Medical Risk Justification

  :Age limits are based on medical expert advice to safeguard the health of both the surrogate and the child.

• Alignment with Natural Reproductive Timeline

  :The surrogacy cannot be entirely decoupled from natural biological norms, especially when age impacts genetic quality and parental longevity.

• Child Welfare Concern

  :The state must consider whether parents well into their 60s can provide long-term emotional and financial support to the child.

In response to the Court’s query on why natural geriatric pregnancies are not banned, the ASG clarified that while natural conception is a personal choice, surrogacy is a regulated procedure, and hence subject to safeguards.

Arguments Against Age Limits

1.    Violation of Reproductive Autonomy:
Imposing strict age criteria restricts a couple's fundamental right to reproductive decision-making under Article 21.

2.    One-Size-Fits-All Approach:
The fixed cut-offs do not consider individual medical fitness, biological diversity, or advancements in reproductive medicine.

3.    Disadvantage to Late Marriages and Second Marriages:
Many couples now marry or remarry in their late 40s or 50s. The law’s rigidity disproportionately affects such families.

4.    Unequal Treatment Compared to Natural Birth:
There is no age restriction for conceiving naturally, yet the law imposes one on assisted reproduction—raising questions about fairness and consistency.

Implications for Policy and Governance

1.    Need for Legal Flexibility
Blanket bans often fail to accommodate edge cases—especially in sensitive domains like fertility and family.

2.    Constitutional Scrutiny of Social Laws
Social legislation must not override personal liberty unless it clearly serves a legitimate public interest.

3.    Redefining Family Norms
Modern laws must be inclusive of non-traditional families, such as unmarried single parents, LGBTQ+ couples, etc.

Conclusion:

The Supreme Court's upcoming verdict could have far-reaching consequences for how reproductive laws are interpreted in India. It may:

• Force a reconsideration of rigid age limits;
• Lead to retrospective relief mechanisms for couples already mid-treatment;
• Spark legislative or policy-level review of what constitutes a "family" in modern India.

Whatever the outcome, this case is a milestone in India’s reproductive rights jurisprudence and will likely influence future discussions on autonomy, equality, and dignity.