Kerala High Court Upholds Age Limits Under Surrogacy Act, Says It's Scientifically Justified

The Kerala High Court recently dismissed a writ petition that challenged the constitutional validity of the age limit prescribed by the Surrogacy (Regulation) Act, 2021 on intending couples.Justice M.B. Snehalatha remarked that the upper age limit is scientifically justified and it is not arbitrary or discriminatory.“The age limits prescribed for intending parents and surrogate mother are based on intelligible differentia namely biological age and medical fitness. Thus classification bears a direct nexus with the objective of the Act which is to ensure safe pregnancies, healthy child birth and the well being of both the surrogate mother and the child to be born. Age based classification is neither arbitrary nor discriminatory but rather scientifically justified. Article 14 of the Constitution of India permits classification if it is based on intelligible differentia and has a rational nexus with the objective. The State is not merely a passive observer but has a positive obligation to safeguard the health of persons undergoing assisted reproduction procedures and the child born through such procedure,” the Court observed.The petitioners before the Court were a married and childless couple, who had 3 viable cryopreserved embryos at a hospital. The ages of the husband and wife were 57 years and 44 years respectively. The only medically viable option for them to have their own children was through gestational surrogacy. However, due to the fact that one of them crossed the upper age restrictions prescribed by Section 4(iii)(c)(I) of the Act, they were unable to proceed with the surrogacy procedure.As per the afore provision, the age of the female is to be between 23 to 50 years whereas that of the male must be between 26 to 55 years.They contended that they have cryopreserved embryos and medical eligibility and therefore, the age restriction is unreasonable and arbitrary, leading to violation of their fundamental rights under Articles 14 and 21 of the Constitution.It was also pointed out that they started the surrogacy procedure prior to the commencement of the Act, i.e., before 25.01.2022 and the embryo was cryopreserved in 2023. Therefore, they stated that applying the current age cap retroactively to pre-existing embryos was unconstitutional.The Central government contended that the upper age limit was prescribed after much deliberation with domain experts and taking into consideration the future of the child to be born through surrogacy. Social and health aspects were also considered so as to avoid a situation where the child may have parental age-related concerns like health complications or inability to provide adequate care.It was also argued that there is no fundamental right to surrogacy and there is only a statutory right which is reasonably restricted by the Act. The Union's counsel further said that the cryopreservation happened after the commencement of the Act and therefore, the petitioners cannot contend that there is retrospective application.After considering the arguments, the Court looked into various decisions of the Apex Court, including the recent one in Vijaya Kumari S. & Another v. Union of India. It then remarked that since the present classification is based on intelligible differentia, which is permitted by Article 14, it cannot be said that the classification is unconstitutional.The Court made further observations regarding the reasonability of the age restrictions imposed:“The age restrictions are grounded on medical sciences, ethical necessity and social welfare and they meet the constitutional standards of reasonableness and proportionality. Age restrictions are not an infringement of rights, but it act as a protective frame work. Regulation of reproductive technology is not a denial of liberty, but a structured exercise of it. The objective behind age restriction is to ensure safe reproduction, child welfare and medical viability. Thus classification based on age is scientifically grounded and directly linked to the purpose. Reproductive technologies affect the family structure, child rights and public morality. State can impose reasonable restrictions in larger societal interest. Fertility, pregnancy outcomes and risks associated with child birth are directly linked to age. The age restrictions satisfies the test of proportionality. It is a measured restriction not an excessive one.”The Court agreed that the right to make decisions relating to reproduction and parenthood comes within the protection of Article 21 but the same is not absolute. “It is true that the right to make decisions relating to reproduction and parenthood forms part of personal liberty under Article 21 of the Constitution of India. But the said rights are not absolute and are subject to reasonable restrictions imposed by the law. The statutory restrictions regarding age governing surrogacy are constitutionally valid and it has a rational link to the object and purpose of the enactment. The restrictions...

Kerala High Court Upholds Age Limits Under Surrogacy Act, Says It's Scientifically Justified

K. Salma Jennath

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