Age bar under surrogacy law won't apply if procedure commenced before Jan 2022: Supreme Court

The Act set age limits for intending couple and surrogate mothers.

New Delhi: The Supreme Court on Thursday held that age related restrictions would not apply on all intending couples who began the process for having a child, prior to enactment of Surrogacy (Regulation) Act, 2021.

A bench of Justices B V Nagarathna and K V Vishwanathan emphasised that the right to make reproductive choices, including pursuing surrogacy, is a facet of personal liberty and privacy protected under Article 21 of the Constitution.

The court allowed writ petitions and applications, filed by Vijaya Kumari S and others, holding the age-restriction provision in Section 4(iii) (c) (1) of the Surrogacy (Regulation) Act, 2021 would not have retrospective operation.

The Act mandated the woman must be between 23 and 50 years of age and the man between 26 and 55 years.

"When there was no age restriction at the stage of creation of embryos and freezing them i.e., prior to the enforcement of the Act, when the intending couples are at the threshold of Stage B, the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right under Article 21 of the Constitution," the bench said.

If an intending couple had commenced the surrogacy procedure prior to the commencement of the Act i.e., January 25, 2022; and were at the stage of creation of embryos and freezing after extraction of gametes; and on the threshold of transfer of embryos to the uterus of the surrogate mother, the age restriction under Section 4(iii)(c)(I) of the Act would not apply to them, the bench said.

The court did not agree to the Union government's contention for retrospective application on the ground of parenting ability and gamete quality.

It said the law imposed no such age restrictions on couples conceiving naturally or adopting under personal law.

The court also underscored, any statute which takes away or impairs vested rights acquired under existing laws or, inter alia, attaches a new disability in respect of transaction already passed, must be presumed to be intended not to have a retrospective effect.

The court permitted the petitioners to continue with their surrogacy procedures, provided they satisfied all other conditions under the Act and its Rules. It also allowed any other similarly placed intending couples to approach their jurisdictional High Court for relief in the future.

The court clarified it has not examined validity of the age restrictions in the law but considered their applicability.

In his separate and concurring judgment, Justice Vishwanathan said, parenthood for the intending couple was not merely a hope or spes, but by completing the Stage ‘A’ process, certain vestitive facts did indeed crystallize and hence, the Act does not seek to divest that.