Age restrictions under Surrogacy Act, 2021 not applicable retrospectively to pre-Act cryopreserved embryos.

JUDGMENT

Petitioners who are husband and wife have approached this Court seeking the following reliefs:

“i) Issue a writ of Mandamus or any other appropriate writ, order or direction directing respondents 1 to 4 to issue Eligibility Certificate to the petitioners under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021, enabling them to proceed with gestational surrogacy using the embryos created and cryopreserved in the year 2021;

ii) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 5^th respondent to permit the petitioners to proceed with gestational surrogacy using the embryos created and cryopreserved in the year 2021;

iii) Declare that the 2^nd petitioner, having completed 50 years but not yet attained 51 years, is eligible to avail surrogacy in view of the law laid down in Rajitha P.V v Union of India (WA No.412 of 2025);

iii) Declare that the age restriction underSection 4(iii) (c)(I) of theSurrogacy (Regulation) Act, 2021shall not operate as a bar to the petitioners in respect of embryos created and cryopreserved prior to 25.1.2022, in view of the law declared by the Hon'ble Supreme Court in Vijaya Kumari.S and another v. Union of India (2025 INSC 1209);”

2. 1^st petitioner is aged 56 and his date of birth is 18.7.1969, 2^nd petitioner is aged 50 and her date of birth is 5.5.1971 and she has not attained the age of 51. Petitioners are issueless. They had undergone Assisted Reproductive Technology procedure and the embryos were created and cryopreserved in the year 2021 prior to the commencement of Surrogacy (Regulation) Act. Despite nine attempts of embryo transfer, implantation did not occur. Two viable embryos remain preserved at 5^th respondent, Multi Specialty Hospital. The embryos were created and preserved prior to the commencement of Surrogacy (Regulation) Act, 2021 and the Rules framed thereunder. While the 2^nd petitioner is within the permissible age as interpreted, the 1^st petitioner has crossed the age limit of 55 years. Though the 2^nd petitioner has completed 50 years of age, has not yet attained 51 years and therefore she remains statutorily eligible under Section 4(iii)(c)(I) of the Surrogacy Regulation Act until she turns 51 as held by the Division Bench of this Court in Rajitha P.V v. Union of India (W.A No.412/2025). Since the petitioners who are the intending couple had commenced the surrogacy process prior to the coming into force of the Act, including freezing embryos, the age restrictions under (iii)(c)(I) of the Surrogacy Act cannot be applied retrospectively to defeat such vested reproductive rights of the petitioners. Since the 2^nd petitioner remains statutory eligible under (iii)(c)(I) of the Act, denial of continuation of the treatment by the 5^th respondent is illegal and arbitrary and against the decision of the Hon'ble Apex Court in Vijaya Kumari S. and another v. Union of India (2025 INSC 1209).

3. Heard the learned counsel for the petitioners, learned Central Government Standing Counsel for the 1^st respondent and the learned Government Pleader.

4. R5 entered appearance and filed affidavit stating that petitioners have been undergoing treatment for infertility at the said hospital and the embryos were created on 24.12.2021 and presently the two balance cryo preserved embryos are available.

5. The Surrogacy (Regulation) Act, 2021 (Act of 2021) and the Surrogacy (Regulation) Rules, 2022 (Rules of 2022) regulate the procedure for conceiving through surrogacy.

6. Section 2(1)(r) defines an "intending couple" as those who have a medical need for surrogacy and seek to become parents through it.

7. Section 2(1)(zd) defines "surrogacy" as a practice where one woman carries a child for an intending coup