The Supreme Court of India, in a judgment delivered on 17 October 2025, held that the age limits prescribed under the Surrogacy (Regulation) Act, 2021 do not apply to couples who had frozen their embryos prior to the Act's commencement. A Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan ruled that the statutory age restrictions cannot extinguish pre-existing reproductive choices made in reliance on the then-prevailing legal framework.
Background
The petitioner, Vijaya Kumari S., challenged the applicability of the Surrogacy (Regulation) Act, 2021, which imposes age-related eligibility criteria for intending couples seeking to avail of surrogacy. The Act prescribes an upper age limit for both the intending mother and father, beyond which couples are ineligible to commission surrogacy.
The petitioner and her spouse had undergone IVF treatment and frozen embryos before the Surrogacy Act came into force on 25 January 2022. By the time the couple sought to proceed with surrogacy using their preserved embryos, they had crossed the statutory age threshold. The question before the Court was whether the Act's age limits could be applied retrospectively to bar couples who had already taken concrete steps towards surrogacy before the legislation existed.
The Surrogacy (Regulation) Act, 2021 was enacted to regulate the practice of surrogacy in India, prohibiting commercial surrogacy and permitting only altruistic surrogacy subject to specified eligibility conditions.
Key Holdings
The Supreme Court held as follows:
Age limits not retrospectively applicable: The Court ruled that the age restrictions under the Surrogacy Act cannot apply to couples who froze embryos before the Act's commencement date. Applying the age cap retrospectively would defeat legitimate expectations formed under the previous legal regime.
Protection of pre-existing reproductive choices: The Bench held that the decision to freeze embryos constitutes a concrete reproductive choice protected under the right to personal liberty. Legislation enacted subsequently cannot nullify steps already taken in exercise of this right.
Statutory construction against retrospectivity: The Court applied the well-established principle that statutes imposing new restrictions or disabilities are presumed to operate prospectively unless the legislature expressly provides otherwise. The Surrogacy Act contains no such express retrospective provision regarding age limits.
Implications for Practitioners
This judgment has direct relevance for fertility law practitioners and IVF clinics advising couples on surrogacy eligibility. Couples who preserved embryos before 25 January 2022 and have since crossed the statutory age threshold can now proceed with surrogacy applications notwithstanding the age bar, provided they meet all other eligibility conditions under the Act.
For practitioners, the critical evidentiary requirement will be establishing the date of embryo cryopreservation. Clinics should be prepared to furnish contemporaneous medical records documenting the freezing date, as this will be the factual foundation for claiming the exemption recognized by the Court.
The ruling also reinforces a broader principle relevant to health and reproductive law: when individuals take concrete steps in reliance on existing legal permissions, subsequently enacted restrictions must be interpreted narrowly to avoid unjust retrospective application. This reasoning may be invoked in future challenges to other provisions of the Surrogacy Act or the Assisted Reproductive Technology Act, 2021, where pre-existing arrangements conflict with newly imposed conditions.