Daijiworld Media Network – New Delhi

New Delhi, Oct 9: In a significant ruling, the Supreme Court on Thursday held that the age restrictions introduced under the Surrogacy (Regulation) Act, 2021, cannot be applied retrospectively to couples who had already initiated the surrogacy process before the law came into effect.

A bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan ruled that couples who had frozen embryos prior to the enactment of the 2021 law had their rights to parenthood established under the legal framework prevailing at that time, which did not impose any age limits.

"At the time the intending couple froze embryos, they came under the act and thus came under parental autonomy," Justice Nagarathna said while pronouncing the verdict. "Before 2021, there were no binding laws on age restrictions for couples intending surrogacy. Hence, those above the prescribed age were not barred."

The verdict comes as a relief to several couples who had approached the court after being denied the right to proceed with surrogacy due to crossing the upper age limit defined in the 2021 Act.

The Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022, restricts the age of intending parents — women between 23 and 50 years, and men between 26 and 55 years. However, the court clarified that couples who had started the process, including freezing embryos, before the law was enacted would not be bound by these restrictions.

Justice Nagarathna emphasised that the right to parenthood is a part of personal autonomy and should not be curtailed by retrospective application of new laws. “Can they now be denied merely because of an age bar under this Act? We cannot say so,” she remarked, adding that the State cannot question the parenting abilities of couples solely based on age.

The Centre had argued that the age restrictions were aimed at safeguarding the welfare of children born through surrogacy, but the bench noted that similar restrictions were not applied to couples conceiving naturally.

The ruling marks a crucial recognition of reproductive rights and personal autonomy, offering relief to several couples who had begun the surrogacy process before the 2021 Act came into force.