Summary
The upper age limits for intending couples in Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 do not operate retrospectively. Couples who before 25/01/2022 had created and frozen embryos for transfer to a surrogate are not barred by age. Their right to pursue surrogacy, a facet of reproductive autonomy under Article 21, had crystallised before the Act. The vires of the age limits was not examined.
Issues
- Whether the age limits of 23-50 years for the woman and 26-55 years for the man in Section 4(iii)(c)(I) apply to intending couples who had begun surrogacy, up to freezing embryos, before the Act came into force on 25/01/2022.
- Whether the transitional provision in Section 53 exhaustively protects pending surrogacy arrangements.
- At what stage surrogacy is "commenced" for deciding whether the age limits apply.
Provisions considered
- Section 4(iii)(c)(I), Surrogacy (Regulation) Act, 2021The provision requires an eligibility certificate showing the intending couple are married and within the prescribed ages on the day of certification. The Court held it prospective, so it does not apply to couples who had created and frozen embryos before the Act and were at the threshold of transfer to a surrogate. (¶¶ 3, 9, 13.8, 13.9, 15.8, 15.9, 15.10, 16, 17)
- Section 53, Surrogacy (Regulation) Act, 2021The ten-month gestation period for existing surrogate mothers was held not to be the only protection of pre-Act arrangements; the Union's argument that age limits could be crossed only where a surrogate was already involved was rejected. (¶¶ 8.8, 8.10, 14.2)
- Section 4(ii)(a) and 4(iii)(a)(I), Surrogacy (Regulation) Act, 2021Surrogacy requires a medical indication necessitating gestational surrogacy and a certificate of essentiality; the Union did not dispute that the three couples prima facie qualified, subject to medical opinion. (¶¶ 10, 10.1)
- Rule 14, Surrogacy (Regulation) Rules, 2022Rule 14 lists the medical indications necessitating gestational surrogacy; certification to the petitioners was made subject to Rule 14 being satisfied. (¶¶ 10, 10.1, 16)
- Article 21, Constitution of IndiaReproductive autonomy, including the decision to have a child through surrogacy regardless of age, was held to be part of personal liberty. Before the Act it was unrestricted as to age, and it cannot be taken away retrospectively without express legislative intent. (¶¶ 12, 12.5, 12.6, 12.7, 13.8, 15.9, 15.10)
Held
- Before 25/01/2022 no law imposed an age limit on intending couples. A medically eligible couple's choice to pursue surrogacy was an exercise of decisional and reproductive autonomy under Article 21, so couples who had created and frozen embryos had a right to surrogacy unconditioned by age. (¶¶ 11.3, 12.5, 12.6, 12.7)
- Every statute is presumed prospective unless made retrospective expressly or by necessary implication, particularly where it impairs vested rights or attaches new disabilities. The Act shows no such intention for the age limits, so they cannot be applied to couples who had commenced surrogacy before it came into force. (¶¶ 13.8, 13.9, 15.2, 15.8, 15.10)
- The Union's concerns about parenting capacity and gamete quality were not compelling reasons for retrospective application, since the law places no age bar on natural conception or on adoption under personal law. The Act's objects concern exploitation of surrogate mothers and the rights of children, not the age of intending couples. (¶¶ 13.3, 13.4, 13.5, 13.6, 13.7, 13.10, 13.11, 13.12)
- For the limited purpose of the age bar, surrogacy is "commenced" once the intending couple has extracted and fertilised gametes and frozen the embryos for transfer to a surrogate. Nothing further remains for the couple to do, and earlier steps such as clinic visits, counselling and gamete extraction do not suffice. (¶¶ 14.1, 14.3, 15.9)
- Section 53 cannot be read as the only protection for pre-Act arrangements. That reading would let the age concerns disappear wherever a surrogate was already involved, while frustrating couples one step away from the transfer. (¶ 14.2)
- Where a couple commenced surrogacy before 25/01/2022, had created and frozen embryos after extracting gametes, and was on the threshold of transferring them to a surrogate, Section 4(iii)(c)(I) does not apply. The authority must issue certification if those conditions and Rule 14 are satisfied. (¶¶ 16, 17, 18)
- Concurring, K.V. Viswanathan, J. reasoned that completing the embryo-freezing stage crystallised vestitive facts, so parenthood was more than a mere hope. The Act does not divest that right, Section 53 operates in its own sphere, and Anushka Rengunthwar and Universal Imports Agency on things done before a change of law support this.
Result
Writ petitions and interlocutory application allowed; the petitioners and applicants are exempted from the qualifying-age requirement for continuing surrogacy, subject to the other conditions of the Act and Rules; similarly placed couples to approach the jurisdictional High Court; validity of the age limits left open.