India Surrogacy Law: SC Debates Age Limit & Reproductive Rights | surrogacy age limit India, India surrogacy law, Surrogacy (Regulation) Act 2021, Supreme Court surrogacy, reproductive rights, surrogacy age cap
Should the law decide when a woman is too old to become a mother? This question is now before the Supreme Court, which is hearing a petition challenging the age restrictions imposed by India’s Surrogacy (Regulation) Act, 2021. At stake is not just one woman’s reproductive dream but a larger debate about autonomy, medical ethics, and the state’s role in family planning.
The law, which replaced India’s once-thriving commercial surrogacy industry with a strictly regulated altruistic model, allows only heterosexual married couples to pursue surrogacy. It also stipulates that the woman must be between 23 and 50 years of age, and the man between 26 and 55.
The petitioner, a 52-year-old woman, approached the court after being denied permission to proceed with surrogacy despite having cryopreserved embryos from before the Act came into force. She has argued that the restrictions are arbitrary and violate her fundamental rights under Article 21 of the Constitution, which protects the right to life and personal liberty.
During the hearing, the Bench led by Justice B.V. Nagarathna questioned the rationale of imposing a blanket age cap, noting that reproductive choice is a facet of the right to privacy, as upheld in the Puttaswamy judgment.
The Bench remarked that if a woman is medically fit, age alone should not determine her ability to have a child. “What if a woman over 50 has her own embryos frozen before this law? Shouldn’t that be treated differently?” the judges asked, signalling that a case-by-case medical evaluation might be more reasonable than a fixed age bar.
The Union Health Ministry, represented by Additional Solicitor General Aishwarya Bhati, has stood by the age restrictions. It has argued that the cap is meant to protect women from high-risk pregnancies and ensure ethical practices in surrogacy.
The government has also stated that these limits are based on medical data and international guidelines. According to Bhati, allowing older women to undergo surrogacy—even with frozen embryos—could open the door to unregulated, high-risk procedures.
While the Act aimed to curb exploitation of poor women who worked as surrogates for commercial gains, critics argue that it has overcorrected by imposing excessive restrictions on intending parents.
The law excludes single women and men
Same-sex couples, Live-in partners, Foreign nationals. Additionally, it mandates that a surrogate must be a close relative of the intending couple and has to meet stringent health requirements. This, many argue, is both impractical and discriminatory.
“We are in a democracy. And the state or the courts cannot police people’s most basic and private choices. So no, I don’t think there is any need for the court to even intervene in this matter. There should be no age cap for surrogacy,” said an activist lawyer practising in the Bombay High court, to THE WEEK.
At the heart of the debate is whether chronological age should override medical science. Advances in assisted reproductive technology (ART) now allow women to freeze eggs and embryos, mitigating age-related fertility decline.
Dr Sheetal Jindal, director, medical genetics, at Jindal IVF, Chandigarh, talks about how advancements in assisted technologies are helping achieve successful pregnancy outcomes in the older age group. “With more over 20,000 IUI procedures and more than 15,000 IVF cycles, we have seen how deeply medicine can change lives when practiced with empathy and precision. We have successfully managed some of the most challenging fertility cases, including obstructive azoospermia and high-risk pregnancies.”
Medical experts say that risk factors vary by individual health, not just age, and that a more flexible framework could ensure both safety and choice. The current law, they argue, paints all women with the same brush, ignoring modern reproductive realities.
Internationally, countries like the US and Canada allow clinics and doctors to determine suitability based on medical assessment rather than a uniform legal age cap. India’s rigid framework, critics say, lags behind these more patient-centric approaches.
The Supreme Court’s decision in this case could have wide-reaching implications. If it rules that the age cap is unconstitutional or unreasonable, it might prompt amendments to the Surrogacy (Regulation) Act, bringing it closer to scientific and ethical balance.
The Bench has asked the government to reconsider the strict age limits, especially in cases involving cryopreserved embryos—a technology that did not exist when earlier surrogacy policies were framed.
Beyond this one case, the court’s deliberations highlight a fundamental question: Who gets to decide how and when a person becomes a parent—the individual or the state?
As the hearing continues, the case is being closely watched by fertility clinics, legal experts, and couples across India. For many, it represents a turning point in how reproductive rights will be defined in the coming decade.