Delhi HC allows couple to continue with gestational surrogacy despite age bar

New Delhi: The Delhi High Court has, prima facie, observed that individuals who have already initiated or undergone the Assisted Reproductive Technology (ART) process should not be disqualified based on the age restrictions imposed by the Surrogacy (Regulation) Act, 2021.

A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula noted that Section 4(iii)(c)(I) of the 2021 Act, which sets age limits for intending parents, should not be applied retrospectively.

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This section stipulates that surrogacy procedures can only begin if the intending couple is married and within certain age limits.

The court's observations came while allowing a couple, both nearly 51 years old, to continue with gestational surrogacy treatment that they had initiated before the 2021 Act came into effect.

The couple was aggrieved by the age bar introduced through the new act, which prevented them from commissioning surrogacy despite having started the process earlier. The court granted interim relief to the couple, directing that, subject to meeting all other conditions under the 2021 Act and other applicable laws, an eligibility certificate be issued to them, allowing them to proceed with the surrogacy using embryos created through their IVF treatment.

The court recognised the emotional distress endured by the couple due to their inability to proceed with surrogacy and stressed the need for compassionate consideration and interim relief. The Centre has been directed to respond to the couple's challenge to the validity of Section 4(iii)(c)(I) of the 2021 Act.

The court listed the matter for further hearing on December 15.