Does the Age Bar in the Surrogacy Act Apply to Couples Who Preserved Embryos Before the Law Took Effect?

In a landmark judgment delivered in Vijaya Kumari S. & Another v. Union of India (2025 INSC 1209), the Supreme Court of India addressed a pressing question: whether the age restrictions imposed under the Surrogacy (Regulation) Act, 2021 apply to couples who had already preserved embryos before the law came into force.

The decision has far-reaching implications for couples who began the surrogacy process before January 25, 2022 — the date the Act took effect — and who later found themselves ineligible under the new law due to the upper age limit of 50 years for women and 55 years for men.

This article analyses the background, the legal provisions involved, arguments of the parties, judicial reasoning, and the Court’s final ruling, with a focus on how the Court balanced reproductive autonomy with legislative intent.

Background and Legal Context

The Surrogacy (Regulation) Act, 2021, was enacted to regulate surrogacy procedures in India, primarily to prevent the exploitation of surrogate mothers and to prohibit commercial surrogacy. Section 4(iii)(c)(I) of the Act mandates that:

“The intending couple are married and between the age of 23 to 50 years in case of the female and between 26 to 55 years in case of the male on the day of certification.”

The Act came into force on January 25, 2022, with the Surrogacy (Regulation) Rules, 2022 following on June 21, 2022.

However, Section 53 of the Act — a transitional provision — provided a ten-month protection only to “existing surrogate mothers,” without explicitly addressing couples who had already completed parts of the surrogacy process (like embryo freezing) before the law’s commencement

This gap gave rise to multiple petitions, notably Vijaya Kumari S., Urvashi, and Sadasivam P., which the Supreme Court heard together.

Facts of the Case

(a) Vijaya Kumari S. & Another v. Union of India (Writ Petition (Civil) No. 331 of 2024)

The petitioners were a married couple who, in 2021, had successfully retrieved and frozen embryos in Chennai after failed IVF attempts. However, the pandemic delayed embryo transfer, and by the time they sought surrogacy in 2024, the wife was over 50 and the husband over 55 — exceeding the statutory limits.

(b) Urvashi & Another v. Union of India & Others (W.P. 809/2024)

This couple had created embryos in 2019 and stored them in Mumbai. The COVID-19 outbreak stalled their surrogacy plans, and by the time the Act was enforced, the husband had crossed 55. They contended that their right to parenthood vested before the Act’s enforcement.

(c) Arun Muthuvel v. Union of India & Others (Writ Petition (Civil) No. 756 of 2022)

This couple, aged 62 and 56 respectively, had initiated surrogacy before 2022 and successfully created embryos. However, the surrogate suffered a miscarriage in January 2022, just before the Act came into effect. Their plea sought permission to use their stored embryos despite the age restriction.

Issues Before the Court

1. Whether the age bar under Section 4(iii)(c)(I) applies retrospectively to couples who had initiated surrogacy procedures before the Act came into force.
2. Whether the freezing of embryos prior to January 25, 2022 constitutes a “commencement” of surrogacy procedure.
3. Whether retrospective application violates vested rights and the constitutional right to reproductive autonomy under Article 21.

Arguments of the Petitioners

1. Non-Retrospectivity: The petitioners relied on CIT v. Vatika Township (2015) 1 SCC 1 and S.L. Srinivasa Jute Twine Mills v. Union of India (2006) 2 SCC 740, asserting that legislation affecting vested rights cannot operate retrospectively unless explicitly stated.
2. Vested Reproductive Rights: Couples who had begun IVF and embryo freezing had already exercised their reproductive choice — a right guaranteed under Article 21 as recognised in Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 and K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
3. Arbitrariness and Discrimination: They argued that while couples of similar age could adopt children or conceive naturally without restriction, denying surrogacy solely on age grounds was arbitrary and discriminatory under Article 14.
4. Pandemic Delay and Bonafide Intent: The petitioners highlighted that their surrogacy procedures were delayed due to COVID-19 — an unforeseen circumstance — and that they acted in good faith before the Act’s commencement.

Arguments of the Respondents

1. Legislative Intent and Child Welfare: The government, represented by Additional Solicitor General Aishwarya Bhati, contended that the age limits were designed to protect surrogate mothers and the welfare of children, ensuring that parents are of an age capable of providing stable guardianship.
2. No Fundamental Right to Surrogacy: Surrogacy, being a statutory creation, cannot be claimed as a fundamental right. Unlike ART, surrogacy involves a third person’s body (the surrogate mother), making it subject to stricter regulation.
3. Transitional Provision Limited to Surrogates: Section 53 expressly protects only surrogate mothers undergoing gestation at the time of enforcement, not intending couples.
4. Medical and Scientific Rationale: The age restrictions were based on medical data regarding declining gamete quality and increased risks to child health after certain ages.

Court’s Analysis and Reasoning

1. Reproductive Autonomy as a Constitutional Right

Justice B.V. Nagarathna reaffirmed that reproductive autonomy — including the choice to have children through surrogacy — is a dimension of personal liberty protected under Article 21. The Court relied heavily on Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, and X2 v. State (NCT of Delhi) (2023) 9 SCC 433, observing that reproductive freedom extends to the right to procreate through lawful means, including assisted reproduction.

2. Legislative Intent Was Regulatory, Not Punitive

The Court noted that the Act’s primary purpose was to prevent exploitation and regulate surrogacy clinics, not to deprive bona fide couples of their pre-existing rights. The fixation of an upper age limit, though valid prospectively, cannot undo reproductive steps lawfully initiated under the previous regime.

3. Freezing of Embryos Equals Commencement of Procedure

The Court clarified that the process of surrogacy “commences” once embryos have been created and frozen for intended transfer. This marks the completion of Stage A (fertilisation) and precedes Stage B (implantation). Therefore, couples who had reached this stage before January 25, 2022, are deemed to have begun the surrogacy process and cannot be disqualified merely due to age.

4. No Retrospective Application Without Clear Legislative Intent

The Court invoked the principle from K. Gopinathan Nair v. State of Kerala (1997) 10 SCC 1 — that unless expressly stated, laws should not retrospectively curtail vested rights. It held that the age bar applies prospectively, and the Act does not manifest any clear intent to affect past actions.

5. Equality and Rational Nexus

While acknowledging the State’s interest in child welfare, the Court observed that no age bar exists for natural conception or adoption. Therefore, selectively restricting surrogacy without transitional relief was disproportionate and unreasonable when applied retrospectively.

Key Judicial Findings

1. Embryo freezing before 25 January 2022 constitutes the commencement of surrogacy.
2. Couples who had frozen embryos prior to that date cannot be barred based on age.
3. The Act’s age restrictions apply prospectively to future intending couples.
4. The right to reproductive autonomy includes the right to complete lawful procedures already initiated.
5. No presumption of retrospective operation exists in the absence of explicit legislative intent.

Outcome and Directions

The Supreme Court held that the age restrictions under Section 4(iii)(c)(I) of the Surrogacy Act shall not apply to couples who had:

• Commenced the surrogacy process, evidenced by fertilisation and freezing of embryos, before January 25, 2022; and
• Taken bona fide steps towards surrogacy, but were delayed due to circumstances like the pandemic.

Accordingly, the Court directed the National Surrogacy Board to allow such couples to proceed with embryo transfer and surrogacy after ensuring compliance with other legal and medical conditions.

Significance of the Judgment

1. Relief for Hundreds of Affected Couples: The judgment restores hope for many Indian couples who had preserved embryos before the law took effect but were later denied surrogacy due to the rigid age bar.
2. Clarification on Retrospective Application: The Court’s ruling underscores that transitional justice must protect bona fide actions undertaken under earlier regimes, particularly in matters concerning personal liberty.
3. Recognition of Reproductive Rights: By linking surrogacy to Article 21, the Court reaffirmed reproductive autonomy as a constitutional entitlement, balancing it against the State’s regulatory role.
4. Legislative Implications: The decision may prompt Parliament or the Health Ministry to issue clarificatory amendments or guidelines under Section 53 to ensure a smoother transition for couples who began the process before the Act’s enforcement.

Conclusion

The Supreme Court’s ruling in Vijaya Kumari S. & Another v. Union of India marks a pivotal moment in India’s reproductive rights jurisprudence. It reaffirms that laws cannot retroactively curtail fundamental personal liberties, especially where individuals have already acted within the bounds of pre-existing legal frameworks.

The judgment establishes that the age bar in the Surrogacy (Regulation) Act, 2021, does not apply to couples who had preserved embryos before the law came into force, thereby harmonising legislative intent with constitutional guarantees of fairness, equality, and reproductive freedom.

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