11 October 2025 Legal Updates

AGE BAR IN SURROGACY ACT WON'T APPLY TO COUPLES WHO FROZE EMBRYOS BEFORE LAW CAME INTO FORCE: SUPREME COURT

(a) Case Title:

• Vijaya Kumari S & Another vs. Union of India (with connected matters)

(b) Court:

• Supreme Court of India

(c) Date of Decision:

• October 9, 2025

(d) Bench:

• Justice B.V. Nagarathna and Justice K.V. Viswanathan

Background

Three couples challenged age restrictions under the Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022. The Act mandates that intending couples must be between 23-50 years (female) and 26-55 years (male) at the time of certification to be eligible for surrogacy.

Key Facts

All three couples had commenced surrogacy procedures (extracted gametes, fertilized embryos, and frozen them) before the Act came into force. After the Act's enforcement, they became ineligible due to age restrictions. COVID-19 pandemic had delayed their procedures.

Legal Issues

• Whether age restrictions apply retrospectively to couples who began surrogacy before the Act's enforcement?
• What constitutes "commencement" of surrogacy procedure?
• Whether the right to surrogacy is protected under Article 21?

Key Legal Principles

• Reproductive Autonomy as Fundamental Right: The Court recognized that reproductive autonomy, including the right to choose whether, when, and how to have children, is part of personal liberty under Article 21 of the Constitution.
• Presumption Against Retrospectivity: The Court applied the cardinal principle that statutes are presumed to operate prospectively unless retrospective operation is expressly stated or necessarily implied. A statute cannot take away vested rights without clear legislative intent.
• Vested Rights Cannot Be Divested: Before the Act's enforcement, couples had an unrestricted right to access surrogacy regardless of age. This right vested in couples who had commenced procedures, and cannot be retrospectively taken away.

Court's Reasoning

1. Definition of "Commencement":

The Court held that surrogacy procedure "commences" when the intending couple completes extraction and fertilization of gametes and freezes the embryo for transfer to a surrogate mother. At this stage, couples have manifested clear intention and taken substantial steps.

2. Two-Stage Process:

The Court recognized surrogacy involves:

• Stage A: Counselling, permissions, extraction of gametes, fertilization, freezing embryos (involves only intending couple)
• Stage B: Transfer to surrogate mother's uterus (involves surrogate mother)

Why Age Restrictions Don't Apply Retrospectively

• No express retrospective intent in the Act
• Unfairness: Couples exercised their freedom when no restrictions existed. The law doesn't restrict natural conception or adoption based on age
• Vested constitutional right: The right to pursue surrogacy despite age was a constitutionally recognized right that vested before the Act, and cannot be taken away without compelling reasons

Transitional Provision (Section 53)

Section 53 provided 10-month protection only for "existing surrogate mothers" (Stage B). However, this doesn't mean couples at Stage A have no protection - their vested rights are protected by constitutional principles.

Supreme Court's Decision

1. Holdings:

a. Section 4(iii)(c)(I) age restrictions do NOT apply retrospectively to couples who:Commenced surrogacy before January 25, 2022

• Completed extraction, fertilization and freezing of embryos (Stage A)
• Were at the threshold of transferring embryos to surrogate (Stage B)

b. Such couples are EXEMPTED from age qualification requirements, provided they satisfy other conditions under the Act and Rules

c. The Court clarified it did NOT examine the constitutional validity of age restrictions themselves - only their retrospective application

2. Relief Granted:

• All three couples allowed to proceed with surrogacy despite crossing age limits
• Appropriate authority must issue eligibility certificates if they satisfy medical requirements under Rule 14
• Other similarly placed couples can approach jurisdictional High Courts (not directly Supreme Court)

Important Constitutional Concepts

• Article 21 - Personal Liberty: Includes reproductive autonomy: right to decide whether, when, how many children to have, and access to reproductive healthcare.
• Principle of Non-Retrospectivity: Latin maxim: nova constitutio futuris formam imponere debet non praeteritis (new law should regulate the future, not the past)
• Vested Rights Doctrine: Rights that have completely accrued to a person cannot be taken away by subsequent legislation without express provision.