(MENAFN- Live Mint) The Supreme Court on Thursday ruled that the age restriction under the Surrogacy Regulation Act of 2021 will not apply to couples who had frozen their embryos before the Act came into effect on 25 January 2022, according to a report by LiveLaw.

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A bench of Justice BV Nagarathna and Justice KV Viswanathan said that the right to surrogacy for these couples was established when they froze their embryos under the laws in effect at the time, which did not include an age limit.

They noted that this right is part of reproductive autonomy and parenthood, and therefore, the age restriction under the Surrogacy Act cannot be applied retrospectively to these couples, according to the report.

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The court clarified that it has not decided on the validity of the age bar under the Act but only considered its application to couples who began the process prior to the Act coming into force and got disqualified due to the age bar, as reported by LiveLaw.

The Act stipulates that surrogacy can be pursued by couples where the wife is between 23 and 50 years old and the husband is between 26 and 55. This order was made in the context of a case involving three couples. The court said that any other couples in a similar situation should approach their respective high courts for relief based on this ruling, according to LiveLaw.

The court ruled that the commencement of surrogacy is defined as the point when the gametes are extracted and the embryo is frozen. At this stage, there is nothing further for the couple to do, as the next step is to transplant the embryo into the surrogate mother.

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"This is because by this stage, the intending couple has taken all substantial steps to crystallise their intention to undergo surrogacy," the Court held.

The court rejected the Union's argument for applying the age limit retrospectively, which was based on the suitability of older parents to raise a child. The court ruled that it is not the state's role to determine the suitability of parents , especially considering there is no age restriction for couples who wish to conceive and have children naturally, LiveLaw reported.

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"In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy. It is not for the state to question the couple's ability to parent children after they had begun the exercise of the surrogacy when there were no restrictions on them to do so. In this regard, we consider it useful to note that the law does not impose any age restriction on couples who wish to conceive and bear children naturally", the Court observed.

(With inputs from LiveLaw)

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