Supreme Court Rules Age Limits in Surrogacy Act Not Applicable to Pre-2021 Cases

The Supreme Court of India delivered a significant ruling on Thursday concerning the Surrogacy (Regulation) Act, 2021, which became effective on January 25, 2022.

The Court determined that age restrictions outlined in the 2021 Act will not apply retrospectively to couples who had already initiated the surrogacy process prior to the law's implementation, including those with previously frozen embryos.

Justice BV Nagarathna and Justice KV Viswanathan, forming the bench, established that intending parents' rights to pursue surrogacy were established at the time they froze their embryos under the previously existing legal framework, which did not specify age limitations.

"At the time the intending couple froze embryos, they came under the act and thus came under parental autonomy," explained Justice Nagarathna while announcing the verdict. "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 had reserved its judgment in August on multiple petitions submitted by couples who had begun the surrogacy process before the 2021 Act but were subsequently prevented from proceeding because they exceeded the newly imposed age limits.

Under the Surrogacy (Regulation) Act, 2021, strict age parameters were established—women must be between 23 and 50 years old, and men between 26 and 55 years old. Several couples who had preserved embryos before the legislation was enacted challenged these restrictions, contending that retrospective application violated their reproductive autonomy rights.

The bench clarified today that if the surrogacy process had commenced before the 2021 Act, including instances where embryos had already been created or were awaiting transfer to a surrogate, the new age limitations would not apply.

Justice Nagarathna emphasized that the right to parenthood constitutes personal autonomy and cannot be undermined by retroactively applying new restrictions.

"In the present case," she noted, "the parenting capabilities of the couple are being seen to judge if they can... It is not up to the State to question parental abilities of couples who are above the age restriction."

She further pointed out that the couples in question had pursued surrogacy due to medical necessity after being unable to conceive naturally.

"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."

The Central Government had argued that the age restrictions were designed to safeguard the welfare of children born through surrogacy, suggesting older parents might struggle to meet a child's long-term needs.

The bench, however, rejected this reasoning, observing that such concerns were not applied to couples conceiving 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 concluded.