Recently, the Supreme Court in a bench comprising Hon’ble Mrs Justice B.V. Nagarathna and Hon’ble Mr Justice K. V. Viswanathan reviewed challenges to the age restrictions under the Surrogacy (Regulation) Act, 2021, for couples who had already initiated the surrogacy process, focusing on questions of reproductive rights and constitutional protections.
Brief Facts:
The case arose from challenges to the upper age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which bar women above 50 years and men above 55 years from availing surrogacy. The Petitioners’ three intending couples had commenced surrogacy procedures, including fertilisation and freezing of embryos, before the Act came into force on January 2022. However, due to delays caused by the COVID-19 pandemic, the embryo transfers could not take place. After the Act’s enforcement, they became ineligible, prompting them to seek relief, claiming that the law could not retrospectively invalidate their right to complete the surrogacy process.
Contentions of the Petitioners:
The counsel for the Petitioners contended that the age limits under Section 4(iii)(c)(I) could not be applied retrospectively, as they had already begun the surrogacy process before the Surrogacy (Regulation) Act, 2021 came into effect. The Petitioner argued that freezing embryos in 2021 created a vested right that could not be taken away by subsequent legislation. Citing CIT v. Vatika Township and S.L. Srinivasa Jute Twine Mills, the Petitioner maintained that laws are presumed to operate prospectively. They further claimed that the restrictions were arbitrary, violated their right to reproductive autonomy under Article 21, and lacked a rational or scientific basis. Relying on Suchita Srivastava v. Chandigarh Administration & Ors and X2 v. State, they asserted that reproductive choice includes the freedom to decide when and how to have children. The counsel for the Petitioner also referred to international conventions like CEDAW and the ICPD Programme of Action, which recognise the right to parenthood.
Contentions of the Respondents:
The counsel for the Respondent argued that surrogacy is a statutory right, not a fundamental right, since it involves the body of another person the surrogate mother. The age restrictions were said to be based on scientific and medical reasoning, considering risks associated with advanced age, such as poor gamete quality and health concerns for both child and surrogate. It was contended that the limits aim to ensure the welfare and guardianship of the child, which prevails over the couple’s personal desires. The government maintained that the Act’s transitional clause protects only existing surrogate mothers, not intending couples, and that freezing embryos before the Act’s commencement does not amount to “commencement of surrogacy.” Therefore, the age limits must apply uniformly from January 2022 onwards.
Observations of the Court:
The Court examined whether the age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, could apply retrospectively to couples who had already commenced surrogacy before the Act came into force.
The Court first reaffirmed that reproductive autonomy is a constitutionally protected right under Article 21 of the Constitution. It noted that before the enforcement of the Act, there were no binding legal provisions imposing age restrictions on intending couples. Thus, couples who had already frozen their embryos had exercised their constitutional right to reproductive choice.
“At the time that the intending couple Nos. 1 to 3 herein generated and froze their embryos, they had qualified for surrogacy under the prevailing law. Thus, they came to possess a right to surrogacy as a part of reproductive autonomy and parenthood.”
The Bench held that reproductive autonomy includes the freedom to decide when and how to have children, and this right cannot be retrospectively curtailed by a later statute “The right to decide that, despite one’s age, one wishes to have children through surrogacy, was afforded to intending couples under Article 21 before the enforcement of the Act. Now, with the enforcement of the Act, can that right be stultified?”
Rejecting the Union’s submission that the age limits should apply retrospectively in the interest of child welfare, the Court held that such reasoning cannot override an existing constitutional right “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 on them to do so.”
The Court emphasized that concerns over parenting capability or gamete quality could not justify retrospective application of the law “Concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers (though we do not express any opinion on the same), are not compelling reasons for retrospective application of the Act, especially since the State allows some categories of couples (those who wish to conceive naturally) to procreate despite these concerns.”
Relying on S.L. Srinivasa Jute Twine Mills v. Union of India , the Court reiterated that statutes should be presumed to be prospective unless explicitly made retrospective “It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.”
Finally, the Court clarified that while it was not striking down the age limits prescribed in the Act, such restrictions could not apply to couples who had already commenced surrogacy before January 2022:
“We make it clear that we have not considered the vires of the age fixation under Section 4 for intending couples in this order. ‘Commencement’ of the Surrogacy Procedure: The next question that arises is the proper meaning of the term ‘commencement’ of the surrogacy procedure. When can it be said that couples have ‘commenced’ the process of surrogacy before the enforcement of the Act.”
Thus, the Court held that freezing of embryos before the Act’s commencement constitutes the “commencement” of the surrogacy process for the purpose of protecting such couples from the retrospective operation of age limits.
The decision of the Court:
The Court held that the age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, cannot apply retrospectively to couples who had already frozen embryos before January 2022. It ruled that such couples had a vested constitutional right to continue surrogacy and directed authorities to permit them to proceed. The decision was limited to these petitioners and did not examine the overall validity of the age limits.
Case Title: Vijaya Kumari S & another V. Union of India
Case No.: Writ Petition (Civil) No. 331 Of 2024
Citation: 2025 Latest Caselaw 969 SC
Coram: Hon’ble Mrs Justice B.V. Nagarathna and Hon’ble Mr Justice K. V. Viswanathan
Counsel for the Petitioner: Adv. Eka Kumari Singh, AOR Mohini Priya
Counsel for the Respondent: None
Read Judgement @LatestLaws.com
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