Upper age limits in Surrogacy Act are constitutionally valid, reasonable restrictions protecting child welfare and health.

JUDGMENT :

M.B.SNEHALATHA, J.

In this writ petition filed under Article 226 of the Constitution of India, petitioners challenge the constitutional validity of the upper age limit imposed on the intending couple under the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as Act).

2. Petitioners are husband and wife. 1^st petitioner wife is aged 44 and 2^nd petitioner husband is aged 57 years. Though married in the year 2006, they have no children. Petitioners have undergone treatments for infertility and undergone various tests and surgeries at various hospitals. The documents relating to the treatment are produced as Exts.P3 to Ext.P8. Petitioners have currently 3 viable cryopreserved embryos at 5^th respondent hospital. The only medically viable option available to the petitioners is gestational surrogacy. But in view of the upper age restriction imposed under Section 4 (iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 they are unable to proceed with the surrogacy procedure on the ground that the 2^nd petitioner has crossed the age limit prescribed under (iii)(c)(I) of the Act. The medical records of the 2^nd petitioner are to the effect that he is medically fit to participate in the surrogacy procedure as per the current clinical guidelines. Surrogacy procedure is the only and last option of the petitioners to have their own child. The refusal of the respondents to permit surrogacy on the grounds of upper age limit, despite the availability of the cryopreserved embryos and medical eligibility, amounts to an unreasonable and arbitrary restriction on the petitioners' fundamental right to reproductive autonomy and family life. Hence, the petitioners seek following reliefs:

1) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to permit the petitioners to proceed with the surrogacy treatment using their cryopreserved embryos, without being disqualified on the basis of the 2^nd petitioner’s age.

2) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction declaring that S.4(iii)(c) (I) of the Surrogacy (Regulation) Act, 2021 and to the extent they impose upper age limit without exceptions, are violative of Articles 14 and 21 of the Constitution and hence as unconstitutional.

3. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction and struck off the impugned provisions to the extent they restrict surrogacy access for medically eligible individuals solely based on upper age limit.

3. Notice served to the respondents. The learned Central Government Standing Counsel entered appearance for the 1^st respondent and the learned Government Pleader entered appearance for respondents 2 to 4. R5 hospital remained absent.

4. 1^st respondent Union of India filed counter stating that the Surrogacy Act was enacted after exhaustive deliberations with all stakeholders by different parliamentary committees and by both houses of the parliament. The process involved domain experts and all stakeholders, with several rounds of review and stakeholder consultation and examination by the parliamentary committee. The object of the Surrogacy (Regulation) Act is to protect individuals who are most vulnerable and to protect surrogate mother and child born through surrogacy. The Surrogacy Act was enacted to provide altruistic surrogacy and to prohibit commercial surrogacy. The issue of prescribing age limits for man and woman for surrogacy services