The court held that age restrictions in the Surrogacy Act do not apply retrospectively to couples who had initiated the surrogacy process prior to the Act's implementation.

JUDGMENT

The writ petition is filed with the following prayers:

“To declare that Section 4 (iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 does not have retrospective operation and therefore, would not apply to the petitioners, who had already commenced the surrogacy process and had cryopreserved their embryos on 06-02-2020;

ii) To declare that Section 4 (iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 to the extent it defines the maximum age for intending couple to seek Surrogacy services from licensed clinics is violative of Article 21 of the Constitution of India;

iii) To declare that Section 4 (iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 to the extent it defines the maximum age for intending couple to seek Surrogacy services is violative of Article 14 of the Constitution of India;

iv) To issue a writ of Mandamus or any other appropriate writ, direction or order directing the Respondents to permit the Petitioners to continue availing surrogacy services by utilizing their embryos cryopreserved with the 4th Respondent Clinic, by exempting them from seeking certification on the qualifying age as prescribed under Section 4 (iii)(c)(I) of the Surrogacy (Regulation)

Act, 2021;”

2. The petitioners are wife and husband, aged 56 and 64 years respectively. From 2018, they had undergone multiple rounds of Assisted Reproductive Technology services (ART services), but did not become fruitful. The first petitioner/wife was suffering from multiple uterine fibroids, which causes increased risk of miscarriage, preterm labour, abnormal fetal position, placental problems etc. and hence, the petitioners were advised by the fourth respondent clinic to undergo surrogacy. Accordingly, the embryos of the petitioners were cryopreserved on 06.02.2020 and are currently stored with the fourth respondent clinic. It is alleged that due to the Covid-19 pandemic outbreak, the subsequent procedures were stalled. After the relaxation of lockdown restrictions in 2022, while the petitioners were attempting to resume the surrogacy process, the Surrogacy Act [for short, “the Act”] came into effect on 25.01.2022 and the Surrogacy (Regulation) Rules, 2022 [for short, “the Rules”], were promulgated on 21.06.2022. As per Section 4 (iii)(c) of the Act, an eligibility certificate ought to have been issued by the appropriate authority to the intending couple if the intending couple are married and between the age of 23 to 50 years in the case of female and between 26 to 55 years in the case of male on the day of certification and if the intending couple have not had any surviving child biologically or through adoption or surrogacy earlier. Since the Act came into force and there were age restrictions in the Act, the petitioners could not continue the surrogacy process. Aggrieved by the age restriction as well as challenging (iii)(c)(I) of the Act, the petitioners have approached this Court.

3. The petitioners are wife and husband, aged 56 and 64 years, respectively. Since 2018, they had undergone multiple rounds of Assisted Reproductive Technology (ART) services without success. The first petitioner/wife was suffering from multiple uterine fibroids, which increase the risk of miscarriage, preterm labour, abnormal fetal position, and placental complications. Consequently, the petitioners were advised by the fourth respondent clinic to pursue surrogacy. Accordingly, the embryos of the petitioners were cryopreserved on 06.02.2020 and are currently stored with the fourth respondent clinic. It is alleged that, due to the Covid-19 pandemic, the subsequent procedures were stalled. After the relaxation of lockdown restrictions in 2022, while the petitioners were attempting to resume the surrogacy process, the Surrogacy