Brief Context
Context The Supreme Court reserved its verdict on petitions challenging the age cap for couples seeking to have a child through surrogacy. Surrogacy (Regulation) Act, 2021 Surrogacy: The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
Source Content
Syllabus: GS2/Health, GS3/ S&T
Context
- The Supreme Court reserved its verdict on petitions challenging the age cap for couples seeking to have a child through surrogacy.
- The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy.
Surrogacy (Regulation) Act, 2021
- Surrogacy: The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
- It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
- Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
- Abortion: Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
- Eligibility and Conditions for Couples: A couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
- The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 23-50 years and the husband is between 26-55 years, and single women must be between the ages of 35 and 45 years.
- The couple must not have any living child (biological, adopted or surrogate).
- A child with mental or physical disabilities, or one suffering from a life-threatening disorder has been exempted from the above criterion.
- The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board.
- They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications.
- Eligibility to be a surrogate: A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who can be a surrogate only once in her life.
- She must also possess a certificate of medical and psychological fitness for surrogacy.
- Regulation: It mandates the constitution of National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively.
- This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.
- Offences: Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.
- These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
Arguments in Favour of the Age Limit for Intending Parents:
- Child Welfare and Parenting Capacity: Ensures that parents are physically and mentally capable of raising a child through their formative years.
- Regulatory Standardisation: Provides uniformity and legal clarity for clinics and surrogacy arrangements across India.
- Balances Reproductive Rights and Health Risks: Women beyond 50 and men beyond 55 face higher risks of medical complications, genetic abnormalities, and age-related fertility decline.
- Supports Policy Goals of Responsible Parenthood: Reinforces the idea that reproduction – natural or assisted – should happen within a responsible age window for the well-being of both child and parents.
Arguments Against Age Limit for Intending Parents
- Violation of Reproductive Autonomy: The age restrictions infringe on the fundamental right to reproductive choice under Article 21 of the Constitution (Right to Life and Personal Liberty).
- Arbitrary and Inflexible Limits: The fixed age cutoffs do not account for individual health status, biological variations, or advances in medical science.
- Excludes Late Marriages and Second Marriages: With changing social trends, many people are marrying or remarrying later in life, the age limits unjustly exclude such couples.
- No Similar Restrictions in Natural Conception: The State does not restrict couples from naturally conceiving children at older ages, yet imposes age restrictions only on ART and surrogacy, which raises concerns of unjustified interference.
Way Ahead
- While age limits under the ART and Surrogacy Acts aim to ensure medical safety and child welfare, a more balanced, rights-based approach is needed.
- The law could adopt a flexible, case-by-case evaluation based on medical fitness, psychological readiness, and social support systems.
- This would uphold reproductive autonomy, align with constitutional rights, and reflect evolving social and medical realities.
Source: IE