New Delhi

The Supreme Court has ruled that the age restrictions under the Surrogacy (Regulation) Act will not apply to married couples who commenced the surrogacy procedure by creating and freezing embryos before the Act came into force in January 2022.

A bench of Justices BV Nagarathna and KV Vishwanathan reasoned that when intending couples had commenced the surrogacy procedure prior to the enforcement of the Act, their constitutional right to have a surrogate child cannot be frustrated by giving a retrospective effect to the law.

"The intending couples have a constitutional right which was unfettered when they commenced the process of surrogacy. The same can be curtailed only by reasonable restrictions and by not interpreting the Act unfairly, so as to completely curtail their constitutional right to surrogacy which was unfettered by the Act not giving a retrospective or even a retroactive effect to the Act under consideration", the apex court observed.

The Court was hearing three pleas challenging the age-related restriction in the Surrogacy Act, which was enforced while they had already commenced the surrogacy procedure.

As per the Act, a married couple would not be eligible to undertake a surrogacy procedure if the female is above 50 years of age and the male is above 55 years of age on the date of certification.

After considering the submissions, the Court held that since there was no age restriction when the couple commenced the surrogacy procedure, the enforcement of the Act while they were at a crucial stage of the process could not be applied retrospectively.

The Court thus ruled that the age restrictions under Section 4(iii)(c)(I) of the Surrogacy Act do not apply to couples who had already begun the surrogacy process before the Act came into force on 25 January 2022 and were at the stage of embryo creation, freezing or about to transfer embryos to the surrogate.

The Court clarified that it was not ruling on the validity of the age restrictions themselves, only their non-retrospective application.

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Accordingly, the petitions were allowed, and the couples were exempted from meeting the age requirement to continue their surrogacy procedures.