Age Limits In Surrogacy Act Do Not Apply To Couples Who Froze Embryos Before Enactment

A bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan delivered the judgment hearing challenges to the age‑restrictions in Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The petitions—Writ Petition (Civil) No.331 of 2024, Writ Petition (Civil) No.809 of 2024 and I.A. No.181569 of 2022 in W.P.(C) No.756 of 2022—raised the question whether the statutory upper age limits (female 23–50 years; male 26–55 years on date of certification) could be applied to intending couples who had already undertaken surrogacy steps before the Act came into force.

Decision Summary: The Supreme Court held that the age‑limits did not operate retrospectively against intending couples who had, before 25 January 2022, completed the extraction and fertilisation of gametes and had frozen embryos in bona fide preparation for transfer to a surrogate. The court emphasised the presumption against retrospective legislation and the constitutional dimension of reproductive autonomy, and directed that such couples would not be denied eligibility certification on the ground of age provided they otherwise complied with the Act and Rules. The Court, in its reasoning, observed: “Thus, if an intending couple had - (i) commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and (ii) were at the stage of creation of embryos and freezing after extraction of gametes (Stage A of the diagram); and (iii) on the threshold of transfer of embryos to the uterus of the surrogate mother (Stage B of the diagram) the age restriction under Section 4(iii)(c)(I) of the Act would not apply.” The court further noted that “reproductive freedom is a fundamental right under Article 21 of the Constitution,” and relied on the legal principle that “unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities.”

Background: The three matters arose from similar facts: each intending couple had undergone IVF/ART work and had embryos created and cryopreserved before the Surrogacy (Regulation) Act and its Rules came into force on 25 January 2022. Subsequent delays—principally the COVID‑19 pandemic and related disruptions—had prevented transfer to identified surrogates. When the Act prescribed upper age limits for intending couples and made eligibility certification a statutory pre‑condition, the petitioners found themselves ineligible despite earlier steps. They challenged retrospective application of the age caps and sought directions to permit continuation of surrogacy using embryos frozen pre‑enactment.

The Union of India defended the age restrictions as a legislative measure aimed at protecting surrogate mothers and the welfare of children born through surrogacy, relying on scientific and policy considerations and on Section 53 (a ten‑month transitional provision) as reflecting Parliament’s intent. The State argued that cryopreservation did not constitute commencement of surrogacy for purposes of the transitional rule.

The Court examined statutory definitions, the two‑stage characterisation of the surrogacy process (Stage A: gamete extraction, fertilisation and embryo freezing; Stage B: involvement of surrogate), and the corpus of precedent on retrospective operation of statutes and on reproductive autonomy. Applying the presumption against retrospectivity and recognising that couples who completed Stage A had manifested a vested interest distinct from mere hope, the Court concluded that imposition of the age bar at the certification stage would unfairly extinguish rights acquired under the prior legal regime. The Court clarified that it did not decide the broader vires of the age limits themselves; it limited relief to intending couples who had completed embryo creation and cryopreservation prior to 25.01.2022.

Result: The writ petitions and interlocutory application were allowed in part. Intending couples who had met the identified criteria (commencement prior to 25.01.2022, completion of embryo creation and freezing, and being on the threshold of transfer to a surrogate) were exempted from the qualifying‑age requirement for certification, subject to compliance with other statutory requirements and Rule 14 medical criteria. The Court granted liberty to similarly placed couples to seek redress in the relevant High Courts.

Case Details: Case No.: 2025 INSC 1209 (Writ Petn. (C) No.331 of 2024; connected W.P.(C) Nos.809/2024 and 756/2022) Case Title: Smt. Vijaya Kumari S & Another v. Union of India (Connected matters: Urvashi & Another v. Union of India & Ors.; Arun Muthuvel v. Union of India & Others) Appearances: For the Petitioner(s): Ms. Pinky Anand, Senior Counsel; Ms. Mohini Priya, Advocate For the Respondent(s): Ms. Aishwarya Bhati, Additional Solicitor General of India