Delhi High Court: Surrogacy Act’s Age Limit Not Retrospective for Ongoing Procedures

In a significant ruling affirming reproductive autonomy, the Delhi High Court has permitted a couple to proceed with surrogacy, holding that the stringent age restrictions under the Surrogacy (Regulation) Act, 2021, do not apply retrospectively to procedures initiated before the law's enforcement.

The judgment, delivered by Justice Sachin Datta in the case of TAPAS KUMAR MALLICK & ANR v. UNION OF INDIA & ANR , provides crucial relief to couples caught in a legal transition, clarifying that those who had already embarked on their surrogacy journey cannot be retroactively disqualified by the Act's new eligibility criteria.

Case Background: A Couple's Quest for Parenthood

The petitioners, a couple aged 57 (husband) and 42 (wife), approached the High Court after being rendered ineligible to continue their surrogacy process. After enduring multiple unsuccessful attempts at natural conception and In-Vitro Fertilisation (IVF), their medical practitioners advised them that surrogacy was their only viable path to parenthood.

Following this medical advice, the couple initiated the surrogacy procedure on January 6, 2021. However, their journey was abruptly halted by the commencement of the Surrogacy (Regulation) Act, 2021, on January 25, 2022.

The new legislation introduced a host of regulations, including strict eligibility criteria for "intending couples." Specifically, Section 4(iii)(v)(c)(I) of the Act mandates that for a couple to be eligible, the wife must be between the ages of 23 and 50, and the husband must be between 26 and 55. While the wife met the age requirement, the husband, at 57, had crossed the upper age limit, leading to their disqualification.

Legal Challenge: Retrospective Application and Fundamental Rights

The couple challenged the rigid application of the age bar, arguing that it was discriminatory, arbitrary, and a direct infringement upon their fundamental right to reproductive autonomy, a facet of the Right to Life and Personal Liberty under Article 21 of the Constitution.

Their central legal contention was that the disqualification operated to their severe detriment, despite them having taken definitive steps towards surrogacy well before the Act came into existence. They argued that applying the new age limit to their pre-existing case amounted to an unfair and unjust retrospective application of the law.

The petitioners' counsel submitted that a law should, by default, be prospective in its application unless the legislature expressly provides for its retrospective effect. Imposing the new age criterion on a process already underway, they argued, created an inequitable situation for couples who had invested significant emotional, physical, and financial resources based on the legal landscape that existed at the time.

The High Court's Rationale: Protecting Pre-Existing Rights

Justice Sachin Datta, in allowing the plea, sided with the petitioners, emphasizing the principle of non-retrospectivity. The court observed that the couple's rights and expectations, which crystallized when they began the process in early 2021, could not be extinguished by a subsequent law.

The court's decision was anchored in the precedent set in Vijaya Kumari S (supra) , another case dealing with the transitional challenges posed by the new surrogacy and ART regulations. Relying on this, Justice Datta noted that the legislative intent was not to penalize or disqualify individuals who had already initiated complex and lengthy medical procedures.

In a key passage from the order, the Court stated:

“In light of Vijaya Kumari S (supra), and considering that the petitioners initiated the surrogacy procedure prior to the enforcement of the Act, this Court is of the view that Section 4(iii)(v)(c)(I) of the Act shall not be applicable to the petitioners herein.”

This clear pronouncement establishes that the eligibility criteria, including the age bar, will not act as a roadblock for couples who can demonstrate that their surrogacy process was in motion before January 25, 2022.

Broader Implications for Legal Practitioners and Intending Parents

This judgment carries significant weight for the legal and medical communities dealing with assisted reproductive technology (ART).

1. Clarity on Transitional Cases: The ruling provides a clear legal pathway for a specific cohort of intending parents—those who started their surrogacy journey before the 2021 Act. Legal practitioners advising such clients can now cite this judgment to argue against the retrospective application of the Act's eligibility conditions.

2. Upholding Reproductive Autonomy: By carving out this exception, the Court has subtly reinforced the constitutional protection of reproductive autonomy. While not striking down the age limit itself, the judgment ensures that the state's regulatory power does not arbitrarily interfere with vested rights and legitimate expectations.

3. Guidance on Statutory Interpretation: The decision serves as a practical example of the judicial presumption against the retrospective operation of statutes, especially when such application would divest individuals of pre-existing rights or impose new disabilities.

As a result of the ruling, the court has exempted the couple from the requirement of seeking an eligibility certificate based on the age criteria. Justice Datta directed that the petitioners are free to move forward with the surrogacy process, provided they fulfill all other applicable conditions stipulated under the Act and the accompanying Surrogacy (Regulation) Rules, 2022.

This nuanced and compassionate interpretation of the law ensures that while the new regulatory framework for surrogacy is upheld, it does not inadvertently penalize those who acted in good faith under the previous legal regime. The decision underscores the judiciary's role in balancing legislative intent with the fundamental rights and legitimate expectations of citizens during periods of legal transition.