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Observing that concerns implicit a couple’s parenting abilities cannot beryllium invoked retrospectively to restrict their reproductive choice, the Supreme Court connected Thursday (October 9, 2025) ruled that the property limits nether the Surrogacy (Regulation) Act, 2021, bash not use to couples who had frozen their embryos and initiated the surrogacy process earlier the instrumentality came into unit connected January 25, 2022.
A Bench of Justices B.V. Nagarathna and K.V. Viswanathan delivered concurring opinions portion proceeding applications filed by 3 couples who argued that they had created and preserved embryos agelong earlier the enactment of the 2021 instrumentality and were truthful unfairly disqualified by the consequent property limits.
Under Section 4(iii)(c)(I) of the Act, an intending mates is eligible for surrogacy lone if the pistillate is betwixt 23 and 50 years of property and the antheral is betwixt 26 and 55 years. The petitioners contended that these limits could not retrospectively disqualify those who had already completed the aesculapian procedures culminating successful embryo freezing.
Justice Nagarathna observed that the instrumentality should not gully a favoritism betwixt couples who conceive people and those who necessitate aesculapian assistance to bash so. “...Prior to the enforcement of the Act, the intending couples were connected the aforesaid footing arsenic couples who wished to conceive naturally. But the stark favoritism is that, owing to aesculapian reasons/disadvantages, they could not person children naturally. Having exercised this parity successful state by commencing the surrogacy process, tin it beryllium said that they tin present beryllium denied the continued workout of this state lone due to the fact that of the property barroom nether the Act? We are not inclined to judge so,” she said. She further noted that determination are nary property restrictions successful adoption nether idiosyncratic laws and questioned wherefore specified restrictions should use to couples who, for aesculapian reasons, opted for assisted reproduction.
The Bench clarified that it was not “questioning the contented of Parliament” successful imposing property limits oregon examining the validity of those restrictions but was confined to the contented of their retrospective application. It besides held that the exemption would widen to cases wherever embryos were created and frozen earlier the commencement of the Act, adjacent if implantation successful the surrogate’s womb had not yet taken place. While the ruling straight benefits the 3 couples earlier it, the tribunal said others successful akin circumstances whitethorn attack the acrophobic High Courts for due relief.
Explained: The caller laws relating to surrogacy and assisted reproduction, and related challenges
‘Unfettered right’
During the proceedings, the Union government, represented by Additional Solicitor-General Aishwarya Bhati, had opposed the pleas, arguing that the property barroom was designed to safeguard the payment of the kid and guarantee the aesculapian information of some the surrogate and the intending parents. She had contended that the statutory limits were based connected adept aesculapian recommendations and reflected earthy reproductive timelines.
The Bench, however, rejected this contention, holding that the authorities could not question a couple’s parenting competence erstwhile they had lawfully embarked upon the surrogacy process. It underscored that reproductive autonomy, safeguarded nether Article 21 of the Constitution, indispensable beryllium upheld irrespective of apprehensions linked to precocious age. The tribunal besides relied upon its 2009 ruling successful Suchita Srivastava v. Chandigarh Administration, wherever it had upheld the close of a large rape subsister with intelligence disabilities to transportation her gestation to term.
“Concerns implicit parenting and gamete quality, portion perchance being morganatic concerns for lawmakers (though we bash not explicit immoderate sentiment connected the same), are not compelling reasons for retrospective exertion of the Act, particularly since the authorities allows immoderate categories of couples (those who privation to conceive naturally) to procreate contempt these concerns or, for that matter, to opt for adoption arsenic per idiosyncratic law,” the tribunal said.
Noting that determination was nary statutory property ceiling anterior to 2021, the Bench observed that the couples had acted wrong the then-prevailing ineligible framework. “The intending couples person a law close which was unfettered erstwhile they commenced the process of surrogacy. The aforesaid tin beryllium curtailed lone by tenable restrictions and by not interpreting the Act unfairly, truthful arsenic to wholly curtail their law close to surrogacy, which was unfettered by the Act, not giving a retrospective oregon adjacent a retroactive effect to the Act nether consideration,” the ruling stated.
The applications were filed successful a pending writ petition by infertility specializer Dr. Arun Muthuvel, who has challenged respective provisions of the 2021 instrumentality and its consequent amendments. The petitioners had commenced successful vitro fertilisation (IVF) attraction successful 2020 and, pursuing aesculapian advice, decided to prosecute surrogacy owing to complications specified arsenic excessive bleeding during erstwhile pregnancies and precocious maternal age.
The tribunal was informed that the transportation of embryos to the surrogate’s womb had to beryllium postponed owed to disruptions caused by the COVID-19 pandemic. By the clip they were capable to resume the process successful aboriginal 2022, the Act and its accompanying rules had travel into force, rendering them ineligible connected relationship of the recently introduced property limits.
The Bench observed that erstwhile the embryos were created and frozen, the couples had taken each indispensable steps indispensable to initiate the surrogacy process, and immoderate consequent steps would impact lone the surrogate mother. This, it said, demonstrated their “manifest intention” to prosecute surrogacy.
