The Supreme Court, in a significant ruling on Thursday, held that the age restrictions stipulated in the Surrogacy (Regulation) Act, 2021, cannot be applied retrospectively to intending parents who had initiated the surrogacy process before the law was enacted.
A bench comprising Justice BV Nagarathna and Justice KV Viswanathan delivered the verdict, providing relief to numerous couples who had preserved embryos with the hope of parenthood but were later barred by the upper age limits introduced by the new legislation. The court declared that the rights of these couples were established at the moment they began the process, and a subsequent law could not extinguish those vested rights.
Background of the Case
The case arose from a series of petitions filed by couples who were impacted by the Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022. The Act imposes specific age criteria for intending parents: the woman must be between 23 and 50 years old, and the man must be between 26 and 55 years old.
The petitioners had already commenced their surrogacy journey, including the crucial step of creating and freezing embryos, under the previous legal regime which did not prescribe any such age limits. They challenged the retrospective application of the new age bar, arguing that it unfairly infringed upon their fundamental right to reproductive autonomy and parenthood. The Supreme Court had reserved its judgment on the matter in August.
Court’s Analysis and Observations
The bench decisively held that the rights of the intending parents “crystallised” at the time they froze the embryos. Since this action was taken when no age-related legal restrictions were in place, the court found that the new statutory bar could not retroactively invalidate their eligibility.
While delivering the judgment, Justice Nagarathna observed, “At the time the intending couple froze embryos, they came under the act and thus came under parental autonomy. Before 2021, there were no binding laws on age restrictions on couples intending surrogacy. Thus, the ones above the age restriction were not conditional on age but were freely available.”
The court emphasised that the right to parenthood is an essential aspect of personal autonomy. It rejected the notion that the State could question the parenting capabilities of a couple based solely on their age, particularly when they had turned to surrogacy due to medical reasons.
“Can they now be denied merely because of an age bar under this Act? We cannot say so,” Justice Nagarathna stated. “We are not questioning Parliament’s intent but are addressing the rights of couples who began the process before the Act came into place.”
Rejection of Centre’s Arguments
The Central Government had defended the age limits, contending that they were introduced to safeguard the welfare of the child born through surrogacy, suggesting older parents may be less equipped to handle the long-term responsibilities of child-rearing.
The Supreme Court, however, did not find merit in this argument. The bench pointed out the inconsistency in applying such a standard only to surrogacy while no such age restrictions exist for couples who conceive naturally. “Although the Centre has argued that the age limit is linked to the welfare of children, we are unable to agree since there is unlimited freedom available to couples who have children naturally,” the court said.
The Final Decision
The court clarified that if the surrogacy process, including the creation or freezing of embryos awaiting transfer, had commenced before the 2021 Act took effect, the new age cap would not be applicable. The ruling effectively allows these couples to proceed with their surrogacy journey and realise their dream of parenthood.
