Kerala HC upholds age limit set for surrogacy

Kochi: High court has held that the upper age limit imposed on couples intending to opt for surrogacy, being based on concerns relating to parental capacity, health, longevity and the welfare of the child, is reasonable, not arbitrary, and not disproportionate.A bench of Justice M B Snehalatha issued the ruling while dismissing a petition challenging the constitutional validity of the upper age limit for couples intending to undergo surrogacy. The petitioners, a couple from Alappuzha — the wife aged 44 and the husband aged 57 — primarily challenged Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. This provision mandates that an intending couple must be married and within the age range of 23 to 50 years for the female partner and 26 to 55 years for the male partner on the date of certification.Although the petitioners were married in 2006, they do not have children and, after years of treatment, decided to proceed with surrogacy. However, the husband had crossed the prescribed age limit under the Act, prompting them to approach HC. They contended that the refusal by the authorities to permit surrogacy on the grounds of the upper age limit amounted to an unreasonable and arbitrary restriction on their fundamental right to reproductive autonomy and family life.Opposing the petition, the central govt argued that the upper age limits for men and women under the Surrogacy Act, as well as for availing ART services under the ART Act, were fixed after extensive consultation with experts and careful deliberation. The age limits were designed to balance the interests of both parents and the child, taking into account factors such as delayed marriages in India, as well as social and health considerations. It was further submitted that the right to avail surrogacy is a statutory right, not a fundamental right, and that the age restrictions are based on rational principles grounded in scientific reasoning and expert advice.Accepting the submissions of the central govt, HC observed that the objective behind the age restriction is to ensure safe reproduction, child welfare and medical viability. While the right to make decisions relating to reproduction and parenthood forms part of personal liberty under Article 21 of the Constitution, HC noted that such rights are not absolute and are subject to reasonable restrictions imposed by law. The statutory age restrictions governing surrogacy were held to be constitutionally valid, as they bear a rational nexus to the object and purpose of the legislation. Accordingly, HC dismissed the petition.
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