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THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ASHUTOSH KUMAR, ARUN DEV CHOUDHURY
Seema Chakraborty, W/o. Bhaskar Bhattacharjee @ Bashkar Bhattacharjee – Appellant
Versus
Union Of India, Represented By Its Secretary To The Government, Department Of Health And Family Welfare – Respondent
| Table of Content |
|---|
| 1. factual background of surrogacy attempts. (Para 3 , 5 , 6 , 7 , 8) |
| 2. arguments against the statutory changes. (Para 10 , 11 , 12) |
| 3. analysis of reproductive rights under article 21. (Para 14 , 16 , 18 , 19) |
| 4. legality of age eligibility and statutory compliance. (Para 21 , 22 , 26 , 28) |
| 5. conclusion on legislative policy and its impact. (Para 29 , 30 , 31) |
| 6. final dismissal of the writ petition. (Para 32 , 33) |
JUDGMENT :
Arun Dev Choudhury, J.
1. Heard Mr. A. Ahmed, learned counsel for the petitioners and Ms. A. Gayan, learned Central Government Counsel, as well as Ms. R. B. Bora, learned Government Advocate, Assam, for the respondents.
2. The challenge is directed both against the applicability of the age eligibility prescribed under Section 4 (iii) of the SURROGACY (REGULATION) ACT, 2021 (hereinafter referred to as the Act, 2021) and the amendment dated 14-3- 2023 to Form No. 2 under Rule 7 of the of the Surrogacy (Regulation) Rules, 2022, which regulates the use of donor gametes.
3. The facts which are necessary for proper adjudication of the present case in nutshell are that the petitioners, a married couple faced with infertility issues went for extensive medic
Legislative imposition of age eligibility for surrogacy does not infringe fundamental rights, as it serves legitimate interests regarding health and welfare of children born from surrogacy.
Upper age limits in Surrogacy Act are constitutionally valid, reasonable restrictions protecting child welfare and health.
Age restrictions under Surrogacy Act, 2021 not applicable retrospectively to pre-Act cryopreserved embryos.
Age restrictions in surrogacy laws cannot be applied retrospectively to couples who initiated processes prior to enactment, preserving their reproductive rights under constitutional protections.
The court's decision emphasized the importance of aligning amendments to subsidiary rules with the main provisions of the Act and ensuring that the statutory conditions for surrogacy are met.
The eligibility for surrogacy under the Surrogacy (Regulation) Act, 2021 includes the entire 50th year, ceasing the day before the intending woman turns 51.
The court ruled that the age limit for surrogacy eligibility is strict, and a female becomes ineligible upon reaching 50 years, rejecting interpretations extending eligibility beyond this age.
Eligibility for surrogacy services is strictly determined by age limits as stipulated in legislation, ceasing upon reaching the specified age.
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