Vijaya Kumari S. vs Union of India - 2025 Supreme(SC) 1793

Headnote:(A) Surrogacy (Regulation) Act, 2021 - Section 4(iii)(c)(I) - Age restrictions for intending couples - Petitioners challenged the retrospective application of age limits of 50 years for females and 55 years for males established by the Act - The Court held that the age restrictions do not apply retrospectively to couples who initiated surrogacy procedures prior to the Act's enforcement, affirming that they had a constitutional right under Article 21 to pursue surrogacy based on prior legal rights - The process involved the creation and freezing of embryos, which manifested intent for surrogacy before the Act came into effect, thus retaining their eligibility despite crossing the age limit since their right to pursue such actions was unregulated pre-enforcement. (Paras 1, 3, 12, 15-19)

Facts of the case:
The intending couples had initiated the surrogacy process prior to 25.01.2022 and frozen embryos, but faced disqualification under the newly implemented age restrictions after the law came into force, limiting their right to utilize surrogacy procedures.

Findings of Court:
The court concluded that the age restrictions established under the Act did not have retrospective operation and that the rights to surrogacy were vested in the couples prior to the enforcement of the Act.

Issues: The main issue was whether the age restrictions outlined in the Act could be applied retrospectively to couples who had already initiated surrogacy procedures prior to the date of enforcement.

Ratio Decidendi: The court ruled that the age restrictions could not apply to intending couples who had commenced surrogacy procedures before the law's enactment, reinforcing the principle that legislative provisions are generally not intended to affect existing rights unless explicitly stated.

Result: Writ petitions allowed; petitioners exempted from age limitation for continuing surrogacy procedures.

Judgement Key Points

Based on the provided legal document, here are the key points regarding the judgment:

Case Overview * The Supreme Court of India allowed three Writ Petitions and one Interlocutory Application challenging the retrospective application of age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. * The Court held that the age restrictions (50 years for females and 55 years for males) do not apply retrospectively to intending couples who initiated surrogacy procedures before the Act's enforcement on 25.01.2022. * The petitioners were exempted from seeking certification based on age limits to continue their surrogacy procedures, provided they satisfy other conditions under the Act. (!) (!) (!)

Facts of the Cases * Intending Couple No. 1: Began IVF treatment in 2020; successfully retrieved eggs and froze embryos on 26.01.2021. The embryo transfer was stalled due to the COVID-19 pandemic when the Act came into force. (!) (!) (!) * Intending Couple No. 2: Had been attempting to conceive since 2012; created two embryos in 2019 at Southern Cross Fertility Centre, Mumbai. The process was halted by the pandemic, and they became ineligible as the husband crossed the 55-year age limit by 2022. (!) (!) * Intending Couple No. 3 (Applicants in I.A. No. 181569 of 2022): Lost their only child in 2018; underwent egg retrieval and embryo creation in 2019. An embryo was transferred to a surrogate in January 2022, but the surrogate suffered a miscarriage. The couple became ineligible due to age limits (wife 56, husband 62). (!) (!) (!)

Legal Arguments * Petitioners' Argument: The right to surrogacy vested in them prior to the Act's enforcement as an exercise of reproductive autonomy under Article 21. The Act does not expressly state its intention to apply age restrictions retrospectively. Applying them now would take away vested rights and frustrate their constitutional right to parenthood. (!) (!) (!) (!) (!) * Respondent's Argument: The object of the Act is to protect surrogate mothers and children born through surrogacy from exploitation and ensure adequate guardianship. The right to surrogacy is statutory, not fundamental, and subject to the conditions laid down in the Act. The transitional provision in Section 53 only protects existing surrogate mothers, not intending couples. (!) (!) (!) (!) (!)

Court's Reasoning and Findings * Reproductive Autonomy: The Court recognized that the right to pursue surrogacy was part of the constitutional right to reproductive autonomy under Article 21 prior to the Act. Since there were no age restrictions before 25.01.2022, the couples possessed an unfettered right to decide to have children via surrogacy regardless of age. (!) (!) (!) (!) * Non-Retrospective Application: The Court applied the cardinal principle of statutory interpretation that a statute is presumed to be prospective unless it expressly or by necessary implication has retrospective operation. The Act lacks express words or necessary intendment to apply age limits to transactions already commenced. (!) (!) (!) (!) * Definition of "Commencement": The Court defined the "commencement" of the surrogacy procedure for the purpose of this exemption as the stage where the intending couple has completed the extraction and fertilization of gametes and frozen the embryos with the intention of transferring them to a surrogate mother. This crystallizes their intention and completes Stage A of the process. (!) (!) (!) (!) * Transitional Provision: The transitional provision in Section 53 regarding a 10-month gestation period applies only to existing surrogate mothers to protect their well-being and does not extend to intending couples. (!) (!) (!) (!) * Vested Rights: By completing Stage A (freezing embryos), the intending couples had vested rights that cannot be divested by a subsequent law imposing new disabilities (age limits) without fair notice. (!) (!) (!) (!)

Holding * Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 does not have retrospective operation. * The competent authority must issue eligibility certificates to intending couples who: 1. Commenced the surrogacy procedure prior to 25.01.2022. 2. Were at the stage of embryo creation and freezing (Stage A). 3. Are on the threshold of transferring embryos to the surrogate mother (Stage B). * These couples are exempted from the age qualification requirement for certification. (!) (!) (!) (!)

Legal Category Hierarchy

1. Intending couples challenging age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, having frozen embryos prior to the Act's enforcement. (Para 1 , 4 , 5 , 6 )

2. Petitioners assert reproductive autonomy and non-retrospectivity; Respondent argues statutory age limits are necessary for child welfare and that transitional provisions apply only to surrogate mothers. (Para 8 )

3. Reproductive autonomy is a fundamental right under Article 21; statutes are presumed prospective; freezing embryos crystallizes the intention to pursue surrogacy as a vested right. (Para 12 , 13 , 14 , 15 )

4. Age restrictions under the Surrogacy (Regulation) Act, 2021, apply prospectively and cannot retrospectively divest rights of couples who froze embryos before the Act's commencement. (Para 16 )

5. Writ petitions allowed; intending couples who froze embryos prior to the Act's enforcement are exempted from the age-limit certification requirement. (Para 17 , 18 )

6. Is the right to pursue surrogacy protected under the Constitution of India?

Yes. The court recognized reproductive autonomy as a facet of the right to privacy and personal liberty under Article 21, encompassing the freedom to make procreative choices, including the choice to use surrogacy. (Para 12 )

7. At what stage is a surrogacy procedure considered commenced for the purpose of avoiding retrospective age limits?

Commencement occurs after the intending couple completes the extraction and fertilisation of gametes and freezes the embryo with the intention of transferring it to a surrogate mother. (Para 16 )

JUDGMENT :

B.V. NAGARATHNA, J.

1. These two writ petitions and one interlocutory application arise out of a set of similar but slightly differentiated facts. The common legal question arising out of them is the application of the age-restrictions on ‘intending couples’ under Section 4 (iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as “the Act” for the sake of brevity).

2. The Act came into force with effect from 25.01.2022. The objects of the Act are the regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto. The relevant definitions of the Act read as under:

“2. Definitions:

(1) In this Act, unless the context otherwise requires,—

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(b) “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;

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(g) “commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;

(h) “couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively;

(i) “egg” includes the female gamete;

(j) “embryo” means a developing or developed organism after fertilisation till the end of fifty-six days;

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(l) “fertilisation” means the penetration of the ovum by the spermatozoan and fusion of genetic materials resulting in the development of a zygote;

(m) “foetus” means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth;

(n) “gamete” means sperm and oocyte;

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(r) “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;

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(v) “oocyte” means naturally ovulating oocyte in the female genetic tract;

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(zd) “surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth

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(zf) “surrogacy procedures” means all gynaecological, obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryo in surrogacy;

(zg) “surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4 ;

(zh) “zygote” means the fertilised oocyte prior to the first cell division.

(2) Words and expressions used herein and not defined in this Act but defined in the Assisted Reproductive Technology Act shall have the meanings respectively assigned to them in that Act.”

2.1 Section 3 speaks of prohibition and regulation of surrogacy clinics, while Section 4 deals with regulation of surrogacy and surrogacy procedures. The expressions “surrogacy” and “surrogacy procedures” are defined in clauses (zd) and (zf) respectively of sub- section (1) of Section 2 of the Act. Sections 4 and 53 read as under:

“4. Regulati