In a landmark ruling, the Supreme Court of India has held that couples who initiated the surrogacy process before the Surrogacy (Regulation) Act, 2021 came into effect can continue with their surrogacy arrangements—even if they are now above the statutory age limit prescribed under the Act.
A Bench comprising Justice BV Nagarathna and Justice KV Viswanathan ruled that the age restriction clause under Section 4(iii)(c)(I) of the Act does not have retrospective application, thereby protecting the reproductive rights of couples who had already taken substantial steps towards parenthood prior to the law’s commencement.
Key Takeaway from the Judgment
The Court made it clear that couples who had frozen their embryos before January 25, 2022 (the date when the Surrogacy Act came into force) have a crystallised right to surrogacy under the laws prevailing at that time. As per the Bench, once embryos have been created and frozen, the process of surrogacy is deemed to have “commenced.”
Therefore, such couples cannot be denied the right to proceed with surrogacy merely because they now exceed the age limits of 23–50 years for women and 26–55 years for men set out under the new Act.
“Section 4(iii)(c)(I) does not have retrospective operation, and therefore will not apply to the petitioners and applicants who are intending couples,” the Bench observed.
Reproductive Autonomy and the Right to Parenthood
The judgment strongly reinforces the concept of reproductive autonomy and the right to parenthood, both of which are intrinsic to the right to personal liberty under Article 21 of the Constitution.
The Bench held that once a couple has undertaken *the extraction of gametes and freezing of embryos, the State cannot retroactively impose restrictions that would deny them the right to complete the surrogacy process. Justice Nagarathna and Justice Viswanathan emphasised that this stage marks the crystallisation of the couple’s intention to become parents.
“There is nothing further for the intending couple to do themselves, as all subsequent steps involve only the surrogate mother. Hence, the surrogacy process is deemed to have commenced,” the Court explained.
Rejecting the Centre’s Stand on Retrospective Application
The Union Government, represented by Additional Solicitor General Aishwarya Bhati, had argued that applying the age limit retrospectively was necessary due to biological and welfare concerns. According to the Centre, older parents might face difficulties in providing long-term care, and the genetic quality of gametes could deteriorate with age.
However, the Court firmly rejected this contention, observing that the State cannot determine the “suitability” of parents in such cases. The Bench noted that there is no age bar for natural conception, and therefore, imposing such limits only on surrogacy is unjustified and discriminatory.
“It is not for the State to question the couple’s ability to parent children after they had begun the exercise of surrogacy when there were no restrictions,” the judgment noted.
“The law does not impose any age restriction on couples who wish to conceive and bear children naturally.”
The Court also observed that concerns about gamete quality and parenting capacity, while relevant from a policy perspective, cannot justify a retrospective denial of the right to surrogacy once it has already begun.
Clarification: Limited to Pre-Act Cases
Importantly, the Court clarified that its ruling applies only to those couples who had already initiated the surrogacy process before the enforcement of the Act.
“We must clarify that we are not questioning the wisdom of Parliament in prescribing age limits,” the Bench noted.
“Our observations are limited to couples who commenced the surrogacy process before the enforcement of the Act.”
The Court directed that other similarly situated couples may approach their jurisdictional High Courts to seek relief based on this precedent.
Defining the “Commencement” of Surrogacy
The judgment provides a crucial interpretation of when surrogacy is deemed to have begun. The Court held that surrogacy is considered “commenced” once gametes are extracted, fertilised, and embryos are frozen for the purpose of implantation in a surrogate mother.
This clarification ensures that couples who had reached this medical stage before January 2022 are protected, even if the actual implantation occurs later.
Context: The Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021, enacted to curb commercial surrogacy and protect surrogate mothers, allows only altruistic surrogacy for intending couples who meet certain eligibility criteria. The Act specifies that:
- The woman must be aged 23–50 years.
- The man must be aged 26–55 years.
- The couple must be Indian citizens and legally married.
- They must not have a surviving biological or adopted child (with certain exceptions).
However, the law was silent on couples who had already initiated the process before its commencement—creating uncertainty for many who had embryos frozen during fertility treatments.
Arguments During the Hearing
During earlier hearings, Justice Nagarathna raised critical questions regarding the rationale behind the upper age limit for intending parents. She noted that while it might make sense for surrogate mothers, the same logic might not hold for intending parents who only contribute gametes.
“If older couples can adopt children under existing personal laws, why can’t they have a child through surrogacy?” the Bench had asked.
The Union Government, however, maintained that the age limit was a biological safeguard intended to protect the child’s welfare and ensure responsible parenthood.
Nonetheless, the Court held that such justifications cannot override vested rights, especially where the process had already begun.
Impact of the Judgment
This ruling is expected to have far-reaching implications for numerous couples across India who had frozen embryos before the Act came into force.
Legal experts view this as a progressive step that upholds the constitutional principles of non-retrospectivity, personal liberty, and reproductive autonomy. It prevents the State from arbitrarily interfering with private reproductive decisions, particularly when the couples acted in good faith under the previous legal regime.
The judgment also underscores the judiciary’s sensitivity to evolving reproductive technologies and its commitment to balancing regulatory oversight with individual freedoms.
Related Developments
The petitions in this case form part of a larger batch of challenges questioning the constitutional validity of certain provisions under both the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.
These challenges contest the age and marital status restrictions, as well as the exclusion of single women (except widows and divorcees aged 35–45) from availing surrogacy, and the prohibition on couples with a surviving child from doing so.
The main petition, filed by Dr. Arun Muthuvel, a Chennai-based infertility specialist, also contests the blanket ban on commercial surrogacy as unconstitutional.
Conclusion
The Supreme Court’s ruling in W.P. (C) No. 756/2022 reaffirms the principle that laws cannot be applied retrospectively to curtail vested rights—especially in matters of personal liberty and family life.
By recognising the right to continue surrogacy for couples who had already begun the process, the Court has provided relief to many families caught in a legal grey area. More importantly, the decision marks a progressive affirmation of reproductive rights, ensuring that the State’s regulatory role does not overstep into personal and private domains of life.
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