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.

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 medical efforts including IVF technology, which failed to bestow them blessings of parenthood for which, they finally decided to go for surrogacy; the semen of the petitioner No.2 was collected for initiating the process of surrogacy. However, during the said process, the Act 2021 was enacted on 25.12.2021, which mandated specific permission and certification to opt for Surrogacy.

4. Finding no alternative, the petitioners approached this Court by filing WP(C) No. 7025/2022, contending that the requisite statutory mechanism for enabling surrogacy had not been constituted till then. Also argued that the Central/State Government has not formed any Board to function as “Appropriate Authority” as required under Section 35 of the said Act, 2021, which issues certificates as required under Section 4 (iii)(a) of the said Act before initiating any procedure for surrogacy.

5. The aforenoted writ petition was disposed of by the learned Single Judge on 23.01.2023, permitting them to try the same in any other State. Accordingly, though the petitioners again initiated the surrogacy procedure on 01.02.2023, it also failed. Thereafter, the Central Government issued a Notification dated 14.03.2023, which prevents the use of donor sperm to avail a surrogacy procedure by a married woman, excluding single women, with an exception in respect of widows or divorcees.

6. Accordingly, the petitioners have filed the present writ petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, assailing the refusal of the competent authorities to permit them to pursue surrogacy under the said Act, 2021, and the Surrogacy (Regulation) Rules, 2022.

7. As recorded hereinabove, the factual background is largely undisputed. The petitioners suffer from medically certified conditions, rendering natural conception impossible. They had earlier attempted surrogacy pursuant to an order of this Court whereby the Court permitted them to do so in another State, in the absence of the establishment of the authority under the Act, 2021 in the State of Assam.

8. 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 Act, 2021.

9. 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.

10. The petitioners contended that the impugned action violates their fundamental rights under Articles 14 and 21 of the Constitution of India.

11. It is urged that