SC: Surrogacy age bar can’t operate retrospectively on embryos frozen before 2022

New Delhi: The Supreme Court has ruled that the age restrictions prescribed under the Surrogacy (Regulation) Act, 2021 will not apply to couples who had frozen their embryos before the legislation came into force on January 25, 2022.

A Bench comprising Justice BV Nagarathna and Justice KV Viswanathan held that such couples had already acquired the right to pursue surrogacy when they opted to freeze their embryos under the legal framework prevailing at that time — a framework that did not impose any age bar.

“The right to parenthood and reproductive autonomy, once validly exercised, cannot be curtailed by a subsequent change in law,” the bench observed, clarifying that applying the 2021 Act’s age limits retrospectively would be contrary to the principle of fairness.

The Court, however, made it clear that it was not examining the constitutional validity of the age restriction itself.

Its decision was confined to the question of whether the statutory age bar could apply to those who had initiated the surrogacy process before the Act took effect but were later disqualified on age grounds.

Under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, only couples in which the wife is between 23 and 50 years old and the husband is between 26 and 55 years old are eligible to pursue surrogacy.

The ruling came in response to petitions filed by three couples who had cryopreserved embryos prior to January 2022 but were later deemed ineligible due to the new age provisions. The Court further directed that other similarly placed co