Can Age Limits in the Surrogacy (Regulation) Act, 2021 Apply Retrospectively to Couples Who Froze Embryos Pre-Commencement?

Summary

Practical Impact

What’s New / What Lawyers Should Note

• The Court confirms that “commencement” of surrogacy, for age-cap purposes, occurs at the embryo-cryopreservation stage (completion of Stage A), not at embryo transfer.
• Section 4(iii)(c)(I)’s upper-age ceilings (female 50, male 55) cannot be applied retrospectively to couples who completed embryo fertilisation and freezing before 25 January 2022.
• Vested rights to pursue surrogacy—once embryos are frozen—are protected under the presumption against retrospective statutes and fall within Article 21 reproductive autonomy.
• Transitional provision (Section 53) addressing existing surrogate mothers does not bar intending couples at the frozen-embryo threshold from eligibility.
• Lawyers may cite this decision to secure eligibility certificates for similarly situated clients who initiated surrogacy procedures pre-Act.

Summary of Legal Reasoning

• Statutory Framework & Definitions
  • The Act (25 Jan 2022) imposes conditions including age for intending couples under Section 4(iii)(c)(I).
  • “Surrogacy procedures” begin with gamete extraction, fertilisation, embryo freezing (Stage A).
• Presumption Against Retrospective Operation
  • Absent express retrospective language, statutes affect only future conduct (CIT v. Vatika; S.L. Srinivasa; Gopinathan Nair).
  • Retrospective detriment to vested rights requires clear legislative mandate.
• Vested Rights at Embryo Freezing
  • Completion of fertilisation and cryopreservation vests a right to continue surrogacy (Salmond’s legal liberties).
  • Couples had no pre-Act age restriction; law permitted Stage A regardless of age.
• Reproductive Autonomy under Article 21
  • Right to choose procreation methods (Suchita Srivastava; Puttaswamy; X2) includes surrogacy absent exploitation.
  • No State interest in parenting capacity overrides vested autonomy once surrogacy process commenced.
• Commencement Defined & Transitional Provision
  • “Commencement” for age-cap triggers Stage B (surrogate involvement), but only for procedures starting post-Act.
  • Section 53 protects existing surrogate mothers but does not override vested rights at Stage A.
• Result
  • Section 4(iii)(c)(I) does not apply to intending couples who had completed embryo freezing before 25 Jan 2022.
  • Appropriate Authorities must issue eligibility certificates if other criteria are met.

Arguments by the Parties

Petitioner

• Surrogacy procedures (embryo freezing) commenced before the Act; rights had vested under pre-Act law.
• Presumption against retrospectivity bars application of age caps to ongoing procedures (CIT v. Vatika; S.L. Srinivasa; Gopinathan Nair).
• Age ceilings lack nexus with Act’s object of protecting surrogate mothers and children; infringe reproductive autonomy under Article 21 (X2 vs. State).
• International commitments (CEDAW; ICPD) support non-interference in reproductive choices.
• Transitional provision (Section 53) does not cover intending couples but evidences Parliament’s selective saving of pre-Act rights.

Respondent

• Act aims to protect surrogate mothers and children; age-limits ensure child welfare and parenting capacity.
• Surrogacy is a statutory (not fundamental) right; conditions (including age) are legislative prerogative (Javed v. Haryana).
• No recognition of embryo cryopreservation as “commencement” under Act; transitional period covers only Stage B.
• Parliament considered pre-existing rights via Section 53; no legislative intendment to protect intending couples at Stage A.
• Age restrictions are based on scientific evidence (menopause, sperm quality) and average marriage age trends.

Factual Background

Three Indian couples with medical indications for gestational surrogacy underwent IVF and cryopreserved embryos before 25 January 2022. COVID-19 delays prevented embryo transfer. Upon enforcement of the Surrogacy Act and Rules, all couples exceeded the Act’s upper-age thresholds and were denied eligibility certificates. They filed writ petitions challenging retrospective application of Section 4(iii)(c)(I).

Statutory Analysis

• Section 4(ii)(a): Surrogacy only for medical indication necessitating gestational surrogacy (Rule 14).
• Section 4(iii)(c)(I): Eligibility certificate requires intending couple to be female 23–50 and male 26–55 on certification date.
• Section 53 (Transitional): Ten-month protection only for existing surrogate mothers post-commencement.
• Rule 14: Defines medical indications for gestational surrogacy.
• Definitions (Section 2): Embryo, fertilisation, zygote, foetus; “surrogacy procedures” include embryo handling; “intending couple.”

Dissenting / Concurring Opinion Summary

• K.V. Viswanathan, J. (concurring): Emphasised that fertilisation and embryo freezing vested reproductive rights and that the Act’s transitional provision does not extinguish those rights. Relied on Salmond’s theory of legal liberties and distinguished substantive versus procedural retrospective effect.

Procedural Innovations

• Judicial clarification that embryo cryopreservation marks the “commencement” of surrogacy for retrospective-effect analysis.
• Enforcement guidance requiring Authorities to disregard age caps for couples who completed Stage A before 25 January 2022.

Alert Indicators

• ✔ Precedent Followed – Affirms established rule against retrospective operation without express legislative intent.