Section 4 (iii)(c)(I) Surrogacy (Regulation) Act Doesn’t Have Retrospective Operation: Supreme Court Permits Couples To Continue Surrogacy

A Bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan pronounced, “In the result, we hold that Section 4 (iii)(c)(I) does not have retrospective operation and therefore would not apply to the petitioners and applicants who are intending couples herein.”

The legal question arising out of the writ petitions in question was regarding the age restriction on intending couples under Section 4 (iii)(c)(I) of the Surrogacy Regulation Act, 2021. It is mentioned in Section 4 (iii)(c) that an eligibility certificate for an intending couple is issued separately by the appropriate authority on fulfilment of certain conditions. One of them being that the intending couple is married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification.

On the issue of commencement of surrogacy process, the Bench held, “In the instant case, the intending couples were a step away from involving the surrogate mother in the process…Therefore we deem it appropriate to observe that commencement of the surrogacy procedure process for the limited purpose of determining when the age limits under the Act must be applied prospectively and not retrospectively, takes place after the intending couple has completed the extraction and fertilization of gametes and has frozen the embryo with an intention to and for the purpose of transfer to the womb of the surrogate mother. There is no additional step to be undertaken by the couple themselves. All subsequent steps would involve only the surrogate mother. There is nothing else for the couple to do themselves that would strengthen the manifestation of the intention to pursue surrogacy. Therefore the freezing of embryos for the purpose of surrogacy is at a stage which one can say that the intending couple has taken multiple bonafide steps and had manifested their intention to pursue surroagacy and all that remained was the involvement of the surrogate mother herself…”

The Bench also mentioned, “At the time when the intending couples froze and generated their embryos, they had qualified for surrogacy under the prevailing law. Thus, they came to possess surrogacy as a part of legal autonomy and parenthood.”

The Court found that before January 25, 2022, there were no binding laws regarding age restrictions on intending couples wishing to avail surrogacy, such as the three intending couples in the instant matter.

“In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy”, it said while also adding, “It is not for the State to question the couples’ ability to parent children after they have begun the exercise of surrogacy when they were no restrictions on them to do so. In this regard we consider it useful to note that the law does not impose any age restriction on couples who wish to conceive and bear children naturally."

“We must clarify that we are not questioning the wisdom of the Parliament in its prescription of age limits under the act or passing a judgment on its validity. Rather, the cases are limited to couples who commenced the surrogacy process before the enforcement of the Act, and we limit our observations to the same”, the Bench held.

Justice Viswanathan led a concurrence to the view of Justice Nagarathna.

Earlier, on July 29, 2025,the Court had reserved an interim order on the question of continuation of the process of surrogacy of such an intending couple who commenced the process before the Act came into force.

ASG Aishwarya Bhati, appearing for the Union of India, had earlier told the Court that the rationale for age fixation is the genetic quality of the gametes. The ASG stated that the Union aims to keep the upper age as close to the natural age as possible. The ASG submitted that if power under Article 142 is being exercised for individual cases, the Centre won't oppose. The ASG further stated that there may be a large number of embryos that might have been frozen.

Background

The Court was considering a batch of cases challenging various provisions of the Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology Act, 2021 (ART Act), including the upper age limit for husband and wife fixed under the statutes.

The case emanated from a PIL filed by an infertility specialist from Chennai, Tamil Nadu, Dr. Arun Muthuvel, challenging various contradictions in the ART Act, the ART Rules, the Surrogacy Act, 2021 and the Surrogacy Rules. In January 2025, the Apex Court agreed to hear the batch of petitions challenging the legislation in question. The Apex Court had earlier refused to grant interim relief to intending couples who claimed to have already commenced treatment before the enactment of the ART Act but were unable to continue due to the lack of transitional provisions in the legislation.

Cause Title: Arun Muthuvel V. Union Of India [W.P. (C) No. 756 of 2022]