SAJITHANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition filed under Article 226 of the Constitution of India, petitioners challenge the constitutional validity of the upper age limit imposed on the intending couple under the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as Act).

(2.) Petitioners are husband and wife. 1 st petitioner wife is aged 44 and 2nd petitioner husband is aged 57 years. Though married in the year 2006, they have no children. Petitioners have undergone treatments for infertility and undergone various tests and surgeries at various hospitals. The documents relating to the treatment are produced as Exts.P3 to Ext.P8. Petitioners have currently 3 viable cryopreserved embryos at 5 th respondent hospital. The only medically viable option available to the petitioners is gestational surrogacy. But in view of the upper age restriction imposed under Sec. 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 they are unable to proceed with the surrogacy procedure on the ground that the 2nd petitioner has crossed the age limit prescribed under Sec. 4(iii)(c)(I) of the Act. The medical records of the 2 nd petitioner are to the effect that he is medically fit to participate in the surrogacy procedure as per the current clinical guidelines. Surrogacy procedure is the only and last option of the petitioners to have their own child. The refusal of the respondents to permit surrogacy on the grounds of upper age limit, despite the availability of the cryopreserved embryos and medical eligibility, amounts to an unreasonable and arbitrary restriction on the petitioners' fundamental right to reproductive autonomy and family life. Hence, the petitioners seek following reliefs:

(3.) Notice served to the respondents. The learned Central Government Standing Counsel entered appearance for the 1 st respondent and the learned Government Pleader entered appearance for respondents 2 to 4. R5 hospital remained absent.