Supreme Court Reserves Interim Order On Whether Couple Who Had Frozen Embryo Before Surrogacy Act Was Enacted Can Continue Surrogacy

Today, the Supreme Court reserved interim order on the question of whether a couple who had frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on 25 January, 2022, can continue the process of surrogacy, subject to certain conditions.

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 for husband and wife fixed under the statutes. Earlier, the Union suggested eleven issues to be considered by the Supreme Court regarding both statutes.

A Bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan said the order is being reserved in three cases with regard to the upper age limit being prescribed for securing an eligibility certificate under the Surrogacy Act, with regard to the intending couple who commenced the process before coming into force of the Act.

ASG Aishwarya Bhati, appearing for the Union of India, submitted today that the average age of menopause for a woman in India is 46.2 years. "Therefore, god's timeline is much more stricter", she submitted, in answer to the question from the Bench about there being no age limit for natural procreation.

ASG told the Court that the rationale for age fixation is the genetic quality of the gametes. The ASG said that the Union wants to keep the upper age as close to 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 submitted that there may be a large number of embryos that might have been frozen. She submitted that there are multiple reasons for freezing embryos, and it may not just be for surrogacy.

"Crystallization of right happens on implantation of the embryo in the uterus", the ASG submitted. It was submitted that the welfare of the child is a consideration.

During the hearing, Justice B.V. Nagarathna said, "The risk is there.... Can anybody certify that the child will be perfect?... The intending couple will take the risk". The ASG responded by saying that these are high risk cases. It was submitted that the crystallisation of rights and the beginning of the process is only when the embryo is implanted, as per Section 53.

The matter was heard in part on July 22, when Senior Advocate Pinky Anand, appearing for the Petitioners, submitted that the Petitioners had frozen embryos before the Surrogacy Act came into force on January 25, 2022 and that they are otherwise qualified as per Rule 14 of the Surrogacy (Regulation) Rules, 2022.

It was argued by the Counsel for the Union that the surrogacy process does not commence with freezing of embryo, but with the implantation of the embryo in the womb. He relied on Section 53 of the Surrogacy Act, which is a transitional provision which only aids cases where an embryo has been implanted.

The Court had noted that there are only three cases before it where the Petitioners claimed that they had frozen embryos before the Act came into force. The Court noted the ages of the parties involved in those cases and the date when they commenced the process.

The Counsel for the Union had argued that the Petitioners do not have any vested right since there was no statute which vested such right in them. He also argued that even those who entered into commercial surrogacy arrangements will seek the benefit of continuing the commercial process now. He argued that any such interim order will open floodgates since many petitions are pending before various High Courts.

The Court had then said that it will permit only those couples who had commenced the process before the Act came into force by freezing the embryos, only if they crossed the age limit after the statute came into force, provided they comply with all the other requirements under the statute.

The Court had said that the issue must be addressed jurisprudentially in terms of vested rights. The Counsel for the Union responded by saying that there is a difference between vested rights under a statute and vested rights under natural rights.

The Court then proceeded to see the documents in three cases where the Petitioners claimed that they had frozen embryos before the Surrogacy Act came into force. However, the matter was adjourned since ASG Aishwarya Bhati was not available and the Counsel for the Union requested that the ASG be heard before any interim order is passed.

Thereafter, the matter was heard on July 28, when ASG Aishwarya Bhati made submissions. The ASG told the Court about the reasons for fixing the upper age limit and also permitting those who have preserved the embryo before the Act came into force to continue the process would be a violation of the Act.

Background

The PIL was 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. It was also alleged that the legislation is discriminatory and violative of the constitutional rights of privacy and reproductive autonomy.

In January 2025, the Apex Court agreed to hear the batch of petitions challenging various provisions of the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021.

Pertinently, the Supreme Court 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 transitionary provisions in the legislation. The Court stated that interim relief would be equivalent to granting final relief, which must be decided after a full hearing.

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

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