The Kerala High Court recently upheld the validity of the upper age limit for surrogacy under the Surrogacy (Regulation) Act, 2021.

In a judgment delivered on April 7, Justice MB Snehalatha ruled that the age caps fixed by the law for intending parents and surrogate mothers to undergo surrogacy were scientifically justified and rooted in legitimate public interest.

"The age limits prescribed under the Surrogacy (Regulation) Act, 2021 are constitutionally valid and they represent a carefully designed regulatory mechanism to ensure that surrogacy is practiced in a safe, ethical and non exploitative manner consistent with constitutional principles," it held.

Hence, it dismissed a petition challenging such limits as arbitrary.

The Court found that such upper age limits were required to ensure safe pregnancies and to protect the welfare of the child who is born through surrogacy. These age caps strike a careful balance between individual choice and public health, the Court found.

"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," it said.

The Court added that an individual's right to make reproductive choices under Article 21 (right to life and liberty) of the Indian Constitution is not absolute and can be regulated in the larger public interest.

It noted that assisted reproductive technologies such as surrogacy involve not just the intending parents but also the surrogate mother and the future child. The State had an obligation to regulate such procedures to prevent harm and ensure ethical practises, the Court pointed out.

It concluded that the age restrictions prescribed for surrogacy are grounded in scientific findings, meant to minimise medical complications and to ensure that reproductive technologies are used safely and responsibly.

"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 said.

The Court was dealing with a plea by a married couple aged 44 (wife) and 57 (husband) years, who had been unable to conceive despite years of medical treatment.

They approached the Court after being denied permission to proceed with gestational surrogacy using their cryopreserved embryos.

Permission was denied on the ground that the husband had crossed the upper age limit of 55 years as prescribed under Section 4(iii)(c)(I) of the Act.

They argued that the denial by authorities violated their fundamental rights, especially since they were medically fit.

The Union government submitted that surrogacy is not a fundamental right but a statutory right governed strictly by the provisions of the 2021 Act. It added that age limits were introduced after extensive deliberations with experts.

The restrictions, it was contended, were intended to safeguard the interest of the surrogate mother and the child, while also addressing medical risks associated with advanced parental age.

The Court accepted the submissions of the Union government. It also referred to the Supreme Court's decision in Vijaya Kumari S v Union of India to clarify that a relaxation of the age limits would apply only to couples who had started their surrogacy process prior to the enactment of the Act in January 2022.

Since in this case, the petitioners' embryo were cryopreserved in 2023, they could not claim such an exemption, the Court said. Therefore, it dismissed the petition.

The petitioners were represented by advocates Sreekanth S Nair and Deepa Sreenivasan.

Central Government Counsel K Arjun Venugopal appeared for the Union government.

The State was represented by government pleader PM Shameer.

[Read Judgment]