Age Bar In Surrogacy Act Won't Apply To Couples Who Froze Embryos Before Law Came Into Force: Supreme Court

The Supreme Court on Thursday held that couples who had begun the surrogacy process before the enactment of the Surrogacy (Regulation) Act, 2021 law can proceed with surrogacy despite being over the statutory age limit under section 4(iii)(c)(I). The law mandates that the woman must be between 23 and 50 years of age and the man between 26 and 55 years.

A bench of Justice BV Nagarathna and Justice KV Viswanathan said that the right to surrogacy of such couples crystallised when they had their empbryos frozen under the law prevailing at the time (before commencement of the Surrogacy Act when there was no age limit) as a part of reproductive autonomy and parenthood, and the age restriction under the Act cannot apply retrospectively to such couples.

"In the result, we hold that section 4(iii)(c)(I) does not have retrospective operation, and therefore will not apply to the petitioners and applicants who are intending couples", the Court held.

The Court held that commencement of surrogacy for this purpose means that the gametes have been extracted and the embryo has been frozen, and there is nothing for the couple themselves to do, as the next step is to transplant the embryo to the surrogate mother. This is because by this stage, the intending couple has taken all substantial steps to crystallise their intention to undergo surrogacy, the Court held.

"Commencement of the surrogacy procedure process for the limited purpose of determining when the age limits under the Act must be applied prospectively and not retrospectively, takes place after the intending couple has completed the extraction and fertilization of commits and has frozen the embryo with an intention to and for the purpose of transfer to the womb of the surrogate mother. There is no additional step to be undertaken by the couple themselves. All subsequent steps would involve only the surrogate mother. There is nothing else for the couple to do themselves that would strengthen the manifestation of the intention to pursue surrogacy", the Court held.

The Court rejected the Union's argument in favour of retrospective application of age limit on the ground of suitability of older parents to raise the child. The Court held that it is not the state's job to decide the suitability of parents, especially consider that there is no age bar on couples who wish to conceive and have children naturally.

"In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy. It is not for the state to question the couple's ability to parent children after they had begun the exercise of the surrogacy when there were no restrictions on them to do so. In this regard, we consider it useful to note that the law does not impose any age restriction on couples who wish to conceive and bear children naturally", the Court observed.

The Court added, "Concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers, though we do not express any opinion of the same, are not compelling reasons for retrospective application of the Act, especially since the state allows some categories of couples, those who wish to conceive naturally, to procreate despite these concerns, or, for that matter, to adopt for as per personal law. The respondent Union of India has argued that the age limits are directly related to the welfare of the children. As explained above, we are unable to accept this in view of the unlimited freedom afforded to couples who wish to conceive children naturally, irrespective of their age."

The Court, however, clarified that the aforementioned observations are limited to couples who had initiated the process before the legislation was enacted, and now seek to continue the process.

"We must clarify that we are not questioning the wisdom of the Parliament in its prescription of age limits under the act or passing a judgment on its validity. Rather, the cases are limited to couples who commenced the surrogacy process before the enforcement of the Act, and we limit our observations to the same."

The Court was dealing with three cases concerning the grant of eligibility certificates under the Surrogacy Act to three couples. It held that if any other similarly placed couple wishes to avail remedy in terms of this judgment, the couple may approach the jurisdictional High Court to seek appropriate orders applying this judgment.

The Court had on July 29 reserved its order on the issue of whether a couple who had frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on January 25, 2022, can proceed with surrogacy despite exceeding the upper age limit prescribed under the Act. The law mandates that the woman must be between 23 and 50 years of age and the man between 26 and 55 years.

Background

During the hearing, the bench noted that the law was silent on cases where couples had already begun the surrogacy process prior to the Act's commencement. Justice Nagarathna observed that the issue before the Court was confined to such couples and did not extend to those who had started after the Act came into force.

The bench questioned the rationale behind imposing an upper age limit on intending parents when the surrogate mother, not the intending mother, carries the child. Justice Nagarathna remarked that while an age bar for a surrogate may be reasonable, the same logic might not apply to intending parents.

Additional Solicitor General Aishwarya Bhati, appearing for the Union Government, opposed the pleas. She submitted that the age limit was based on biological considerations and concerns regarding the genetic quality of gametes. She added that the welfare of the child was also a factor, as older parents may not be able to provide long-term care. Bhati referred to one of the petitions in which the intending father was 64 years old and the mother 58.

Justice Nagarathna, however, observed that life expectancy in India has been increasing and pointed out that there is no such age bar for natural conception or adoption. She said the purpose of the Act was to curb commercial surrogacy, not to prevent genuine couples from having children through the procedure.

Bhati also contended that under Section 53 of the Act, the legal rights of an intending couple arise only when the embryo is implanted in the uterus. She argued that several embryos are often frozen for different reasons and not all are used for surrogacy.

The bench referred to the absence of an upper age limit for adoptive parents under the Hindu Marriage Act, observing that if older parents can adopt an infant, it was unclear why they could not have a child through surrogacy.

The present petitions are part of a larger batch challenging provisions of both the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, including age and marital status restrictions, the exclusion of single women other than widows or divorcees aged 35 to 45, and the prohibition on couples with a surviving child availing surrogacy. The main petition, filed by Chennai-based infertility specialist Dr. Arun Muthuvel, also challenges the ban on commercial surrogacy.

After hearing all sides, the Court reserved its order on the limited question of whether couples who had begun the surrogacy process before the enactment of the 2021 law could proceed despite being over the statutory age limit.

Case no. – W.P.(C) No. 756/2022 and connected cases

Citation : 2025 LiveLaw (SC) 990

Case Title – Arun Muthuvel v. Union of India and connected cases

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