SC strikes down retroactive surrogacy age bar

In a landmark ruling that blends law, science, and human rights, the Supreme Court on Thursday held that the age restrictions under the Surrogacy (Regulation) Act, 2021, will not apply to intending couples who had already begun the surrogacy process before the law came into force on January 25, 2022.

The verdict, delivered by a Bench of Justices B. V. Nagarathna and K. V. Viswanathan offers relief to several couples who found their parenthood dreams halted mid-way after the new law imposed upper-age limits. The court made it clear that Section 4(iii)(c)(I) of the Act which requires the woman to be between 23 and 50 years and the man between 26 and 55 years at the time of certification has no retrospective effect.

“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 bench observed in its ruling.

What Surrogacy Means and How It’s Regulated

Surrogacy is a reproductive arrangement in which a woman (the surrogate) carries and delivers a child for another couple who intend to become the child’s legal parents. It is often used when pregnancy is medically risky or biologically impossible for the intending mother.

India allows only gestational surrogacy where the surrogate has no genetic link to the child. Traditional surrogacy, in which the surrogate’s own egg is used, is prohibited.

Before 2022, India’s surrogacy landscape operated in a legal grey zone, with limited national regulation. While the country was once known as a global hub for “fertility tourism,” unregulated commercial surrogacy drew criticism for exploitation and lack of protection for surrogate mothers. To curb this, Parliament enacted the Surrogacy (Regulation) Act, 2021, banning commercial surrogacy and allowing only altruistic surrogacy where no monetary compensation is paid beyond medical expenses and insurance. The Act restricts surrogacy to Indian married heterosexual couples and imposes strict age limits and medical eligibility norms.

However, these provisions soon led to legal challenges. Several couples who had initiated surrogacy or in-vitro fertilisation (IVF) steps before January 25, 2022, found themselves disqualified after the law’s enforcement, prompting petitions to the Supreme Court.

The case and the court’s reasoning

The petitioners argued that they had already created and frozen embryos before the Act took effect, thus acquiring a legitimate expectation to proceed. Imposing new age limits retrospectively, they said, violated their reproductive autonomy under Article 21 of the Constitution.

The Supreme Court agreed. Justice Nagarathna, writing for the Bench, said that when the couples generated and froze their embryos, they qualified under the then-prevailing framework and thus gained a vested right to continue. That right, she held, “cannot be taken away retrospectively on account of their age without express legislative intent.” The bench rejected the Centre’s argument that the State had an interest in ensuring “adequate parenting” by younger couples. “There is no law that restricts natural conception based on age,” the court pointed out, observing that surrogacy cannot be treated differently for those who had already begun the process in good faith.

Justice Viswanathan, in a concurring opinion, reinforced that the right to parenthood is an integral aspect of personal liberty and dignity, and retrospective curbs on it would undermine both.

Limited scope, Broader implications

The Court stressed that its decision does not strike down the age limits themselves, nor question Parliament’s wisdom in prescribing them. Instead, the ruling is confined to couples who had already begun the procedure before the law’s commencement, specifically those who had reached the stage of embryo creation or freezing. It also directed that other couples in similar situations should approach their respective High Courts rather than moving directly to the Supreme Court.

Still, the judgment’s impact is far-reaching. It clarifies that new reproductive restrictions cannot be imposed retrospectively, reinforcing the broader principle of fairness in transition between legal regimes. The ruling could also influence how future reproductive rights and health regulations are interpreted, ensuring that personal autonomy and family rights remain protected.

Why the verdict matters

Legal experts say the decision restores hope to dozens of couples caught mid-stream when the 2021 Act came into force. Fertility specialists see it as a “pragmatic correction” that prevents medical and emotional disruption for families who had invested time and resources in assisted reproduction. At the same time, the verdict highlights the ongoing tension between state regulation and reproductive freedom. While the Act was meant to curb exploitation in commercial surrogacy, critics argue it also narrowed legitimate access for older couples, single parents, and LGBTQ+ individuals.

This judgment, though limited in scope, reaffirms the constitutional protection of reproductive autonomy and may prompt policymakers to revisit aspects of the law that appear overly restrictive. It also sends a signal that India’s courts remain vigilant against retrospective curbs on personal liberty especially in matters touching the most intimate human aspiration: the right to become a parent.