Age Limit Under Surrogacy Act Valid, Can't Be Relaxed Just Because Couple's First Attempt Failed: Gauhati High Court

The Gauhati High Court has held that the statutory restrictions governing surrogacy are constitutionally valid and cannot be relaxed on the basis of individual circumstances.A division bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury, presiding over the case, observed, “The measures pursue legitimate state interests, bear a rational nexus with the object of the legislation and cannot be said to be excessive or oppressive. Individual hardship, however genuine, cannot be a ground to strike down or relax a statutory policy framed in the public interest.”“In conclusion, while the Court is not unmindful of the petitioners' predicament, constitutional adjudication cannot be guided by sympathy alone. The impugned provisions represent a considered legislative policy and do not infringe on Articles 14 or 21 of the Constitution of India,” the Court added.The above ruling was delivered in a writ petition filed by a married couple challenging their ineligibility to pursue surrogacy after crossing the prescribed age limit and due to the amended donor-gamete restrictions.As per the factual background of the case, the petitioners suffered from medically certified conditions, rendering natural conception impossible. They had earlier attempted surrogacy with Court's permission. The said attempt, however, failed for medical reasons.On the date when the amendment dated 14.03.2023 came into force, no surrogacy process of the petitioners was continuing, the earlier attempt having already failed. In the meantime, the petitioners crossed the upper age limit prescribed under Section 4 (iii)(b)(I) of the Surrogacy (Regulation) Act 2021. When the petitioners, thereafter, sought fresh permission to initiate surrogacy, the authorities declined the request on the grounds of statutory ineligibility and non-compliance with the amended Form-2.The petitioners contended that the impugned action violates their fundamental rights under Articles 14 and 21 of the Constitution of India. They urged that reproductive autonomy is an integral facet of personal liberty and dignity; that the petitioners were eligible when they first attempted surrogacy; that the failure of the process was involuntary, and that the subsequent statutory changes cannot be applied to extinguish their rights to parenthood permanently. The amendment to Form-2 is further assailed as discretionary, inasmuch as, donor gametes are permitted for specific categories of single women but not for married couples.The petitioners contended that the rejection violated Articles 14 and 21 of the Constitution. They argued that their reproductive autonomy was an integral facet of personal liberty and dignity, and that they were eligible when they first attempted surrogacy. They further argued that the failure of the process was involuntary, and that the subsequent statutory changes cannot be applied to extinguish their rights to parenthood permanently. They assailed the amendment to Form-2 as discretionary, inasmuch as, donor gametes are permitted for specific categories of single women but not for married couples.The High Court rejected these contentions, holding, “It is a settled principle that eligibility conditions must be satisfied on the date when the benefit is claimed, unless the statute expressly provides otherwise. The failure of the earlier surrogacy attempt, though unfortunate, does not confer a vested right to re-initiate surrogacy in disregard of subsequently enacted/amended statutory requirements.” The Court observed, “In the context of surrogacy, age limits are clearly linked to concerns of health, longevity and the long-term welfare of the child.”The plea of legitimate expectation was also rejected, with the Court holding, “Legitimate expectation neither can be operated against a statute, nor can it be invoked to defeat a clear legislative mandate. The Parliament was competent to prescribe age limits prospectively, and the Act and the Rules in question do not contain any saving clause exempting persons who had failed in attempted surrogacy from compliance with the new eligibility criteria.”Upholding the amended Form-2 restricting the use of donor gametes by married couples, the Court held, “The restriction on the use of donor gametes by a married couple reflects a policy choice aimed at ensuring genetic linkage between the child and the intending parents, a consideration that the Parliament was entitled to prioritise.”The Court also rejected the argument of retrospective application, observing that the petitioners were seeking to initiate a fresh surrogacy process after the amendment had come into force, “The plea of retrospectivity is equally misconceived. The impugned provisions are not being applied retrospectively; they are being used to a fresh attempt at surrogacy initiated after the commencement/amendment of the Act, 2021 and the Rules, 2022, as well as the Forms thereof. The mere fact that the petitioners had earlier attempted surrogacy does not ...

Age Limit Under Surrogacy Act Valid, Can't Be Relaxed Just Because Couple's First Attempt Failed: Gauhati High Court

Bhavya Singh

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