Delhi HC seeks Centre’s stand on plea against age Cap for Women for Surrogacy

The Delhi High Court on Wednesday sought the Centre’s stand on a petition by a couple challenging the law that allows only women between the age of 23 and 50 years to go for surrogacy.

A bench headed by Acting Chief Justice Manmohan issued notice on the petition by the couple, both husband and wife being aged about 51 years, who said such a restriction was against their right to procreation.

The bench, also comprising Justice Manmeet PS Arora, asked the Centre to file its reply but orally remarked that “no one can sit in judgement” in such cases.

“Science has some foundation. We are not going to meddle with science…Don’t play with someone else’s life. The child will be deformed,” remarked the bench.

The petitioners approached the high court after the state medical board refused to issue the certificate of “medical indication” for surrogacy to them on the ground that the “Intending Woman has crossed the upper age limit” under the Surrogacy (Regulation) Act, 2021.

The court listed the matter for further hearing in May and asked the appellate authority to decide the petitioners’ appeal against the rejection in four weeks.

In the petition, the couple said they were married for the last 19 years but did not have a child in spite of going through two rounds of IVF treatment.

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They said they made up their mind last year to go for surrogacy but the medical board rejected their application in a “mechanical manner” without looking at the facts.

“The rejection of the application for issuance of a certificate for medical indication of surrogacy vide impugned is against the principles of natural justice as no opportunity was given to the petitioners to appear and present their case,” said the petition.

“The impugned order dated 28.03.2023 is also in violation of fundamental rights of the petitioners as by rejecting the application the right of procreation has been taken away from the petitioners without any plausible cause,” it added.

The petition asserted Section 4(iii)(c)(l) of the Surrogacy Regulation Act, which provides the age limit, is in direct conflict with the right of privacy as well as dignity as provided under Article 21 (right to life and personal liberty) of the Constitution.

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