Indian Supreme Court: Certain people are exempt from surrogacy restrictions

Recently, India’s Supreme Court reinforced the idea that age limitations implemented by the Surrogacy (Regulation) Act of 2021 do not apply to couples who froze embryos before the law materialized. 

The Court, led by Justices B.V. Nagarathna and K.V. Viswanathan, declared that couples who initiated the surrogacy process — including freezing embryos — before January 25, 2022, had a vested “right” to do so based on India's Constitution.

Key Takeaways:

• India's Supreme Court recently ruled that despite an act regulating surrogacy, those who had frozen embryos before a certain date are not bound by the new regulations, which restrict parents by age and other factors.

• The judges wrote that because age restrictions aren't imposed on couples who conceive naturally, they cannot be imposed on those who conceive through IVF. This makes little sense, given the fact that biologically, humans experience a significant decline in natural fertility as they age.

• India's court decision focuses solely on the 'rights' of adults and not on the natural rights of children.

The Backstory:

The Surrogacy (Regulation) Act of 2021 in India was put in place with stringent age criteria: women obtaining surrogacy must be 23 to 50 years old, and men 26 to 55 years old. Surrogates must also be married, aged 25 to 35, and already have a biological child. The Act also stipulates conditions for medical and legal safeguards for all participants, including health insurance for surrogates and supervision by district medical boards.

The Details:

Previously, the government had stated that older couples would be incapable of caring for children born via surrogacy, but the Court dismissed that stance, maintaining that couples had the “right” to surrogacy instead. They claimed that the creation and freezing of embryos signifies the “crystallisation” of the process and clearly demonstrates the couples’ intent.

“The right to make reproductive choices, including pursuing surrogacy, is a facet of personal liberty and privacy protected under Article 21 of the Constitution,” ruled the two judges.

In context, although the 2021 Act stipulated new age limits for parents and surrogates, these rules cannot retroactively prevent hopeful parents from embracing new lives.

The Economic Times reported on the court's remarks (emphases added):

“Thus, prior to the enforcement of the Act, the right to pursue surrogacy despite one's age did not impinge on any of the above considerations and was solely in the decision-making domain of the intending couple.

It was a personal decision, with personal consequences.

Although the Union of India [central government/Centre] has argued that age-limits are directly related to the welfare of children, as explained above, we are unable to accept this submission in view of the unlimited freedom afforded to couples who wish to conceive children naturally, irrespective of their age." 

Reality Check:

Though the court decision makes it sound simple, the chances of a woman conceiving a child naturally at age 50 are practically zero, which makes the court's claims of "unlimited freedom" seem hollow.

Even the pro-abortion American College of Obstetricians and Gynecologists says that "By 45, fertility has declined so much that getting pregnant naturally is unlikely," and that women "who get pregnant after age 40 have an increased risk of preeclampsia" as well as a greater likelihood of other pregnancy complications.

In other words, the natural biology of human beings limits the boundaries for conceiving children naturally.

Surrogacy, in which another woman is used to carry a child from another couple, often conceived through the use of sperm/egg donors and IVF, also comes with unique risks. As Live Action News recently noted, "[S]urrogate mothers are at a higher risk for numerous complications, including gestational diabetes, hypertension related to pregnancy, and post-birth bleeding complications. Surrogacy also places children at risk, as IVF in and of itself is associated with higher risks for children, including low birth weight and prematurity." 

And, as elsewhere previously reported by Live Action News, surrogate mothers "usually hail from less privileged economic backgrounds and will only provide surrogate services for a fee" but even those who do so altruistically "risk being exploited due to lack of informed consent, insufficient medical support, and lack of legal safeguards." They also "may be impacted by psychological trauma, as they carry and bond with the preborn children for nine months."

These bonds formed during pregnancy aren't simply erased once birth occurs.

The Bottom Line:

The welfare of children should be the primary focus over and above the alleged rights of adults in any practice or scenario in which a new human life may be created. Clearly, in India, the supposed "rights" of adults to conceive the desired "product" — a child — by any means and at any age is all that was considered in this court decision.