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Supreme Court Shields Pre-2022 Surrogacy Dreams: Age Caps Don't Retroactively Block Parenthood
In a landmark ruling blending constitutional rights with medical realities, the has ruled that age restrictions under the , do not apply retrospectively to couples who had already advanced far in surrogacy procedures before the law's enforcement on . Justices B.V. Nagarathna and K.V. Viswanathan delivered the verdict in consolidated writ petitions filed by three couples—, , and applicants in —against the , exempting them from the 50-year female and 55-year male age limits in .
Frozen Embryos, Unfrozen Hopes: The Couples' Plight
These weren't theoretical challenges; they were real families stalled by a pandemic and a new law. Intending Couple No.1 (Vijaya Kumari and husband) married in 2019, retrieved eggs in January 2021, and froze embryos at a Chennai clinic, only for COVID-19 to derail surrogate transfer plans. Couple No.2 faced repeated IVF failures from 2012-2018, froze embryos in 2019 in Mumbai, but again, the pandemic intervened; by 2022, the husband was 58. Couple No.3 lost their child in 2018, prepped embryos post-surgery in 2019-2021, attempted a transfer in January 2022 (which miscarried), but exceeded age limits post-Act.
All three qualified medically for surrogacy under —issues like bleeding risks, failed transfers, fibroids, hypertension—but age barred certification. Petitions argued processes began pre-Act under unregulated regimes like 's 2005 Guidelines, which imposed no age caps on couples.
Petitioners' Cry: Trump New Barriers
Counsel like urged the Court to recognize surrogacy as under , citing for decisional freedom on procreation. They invoked the from and : statutes don't impair absent clear intent. Freezing embryos crystallized intent, vesting rights pre-Act. No commercial surrogacy here—just altruistic gestational paths halted unfairly. They prayed for exemption or striking down age caps, highlighting contrasts: no age bars for natural births or adoptions under personal laws.
A interim order in and 's (on ) supported non-retroactivity for pre-commenced procedures.
Union's Defense: Child Welfare Over Couple's Wishes
countered: surrogacy is statutory, not fundamental, unlike personal ART. Age caps, expert-backed (menopause at 46.2, sperm decline post-55, chromosomal risks), protect surrogates and children needing "adequate guardianship" till majority. 's 10-month transition aids only "existing surrogate mothers," not Stage A embryo-freezing. Pre-Act "cryopreservation" doesn't commence surrogacy; couples had notice via public consultations. Citing , she defended age as legislative wisdom, not judicial turf.
Decoding Autonomy: Why Fails the Test
The Court wove reproductive rights jurisprudence— , , —into statutory interpretation. Pre-Act, surrogacy was unfettered liberty for infertile couples; freezing embryos post-gamete extraction/fertilization marked "commencement," vesting rights. No express/implied retrospective intent in Act; objects target surrogate/child exploitation, not couple ages.
Echoing , fetters on pre-existing choices can't apply backward without clarity. Natural procreation/adoption lack age bars, so parity demands same for pre-Act surrogants. Justice Viswanathan concurred, analogizing to (OCI rights) and Salmond's vested vs. contingent rights: Stage A completion inhered liberties.
Notably, contrasting 's recent upholding of age limits as "scientifically justified" (for new cases), this SC verdict carves a pre-Act exception.
Key Observations
"The right of a couple, medically incapable of conceiving/bearing children naturally, to pursue surrogacy is an exercise of their , which is a fundamental right under of the Constitution."
"For the purpose of non-retrospective application, the 'commencement' of the surrogacy process is defined as the stage where the intending couple has completed the extraction and fertilisation of gametes and has frozen the embryo with the intention of transfer to the womb of the surrogate mother."
"Every statute is prospective unless it is expressly or by made to have retrospective operation."
A Green Light for the Threshold Cases—and Beyond?
Writ petitions allowed: age exemption for couples meeting three criteria—pre-Jan 25, 2022 commencement; embryo creation/freezing post-gamete extraction; threshold of surrogate transfer. Authorities must certify if Rule 14 satisfied, other Act conditions met.
Similarly placed couples: approach High Courts. This balances regulation against rights, potentially aiding dozens stalled by COVID, without challenging age caps' validity. For future seekers, the Act's limits stand—but for these families, parenthood beckons anew.
