Supreme Court Rules Pre-2022 Surrogacy Couples Not Bound by Age Limits

Supreme Court Rules Pre-2022 Surrogacy Couples Not Bound by Age Limits

In a landmark decision, the Supreme Court of India has clarified that age restrictions under the Surrogacy (Regulation) Act, 2021 will not apply retrospectively to couples who began the surrogacy process before the Act came into force on January 25, 2022.

Key Highlights of the Verdict

• Non-retrospective application: Couples who initiated surrogacy prior to the 2021 Act are exempt from the new age limits.

• Vested rights recognized: Justice BV Nagarathna emphasized that couples who had frozen embryos or gametes or had otherwise shown intent to pursue surrogacy before the law came into effect hold parental and procedural rights.

• Transitional provisions apply: If embryo transfer to the surrogate or freezing of embryos/gametes occurred before January 25, 2022, the age restrictions do not affect these cases.

• Pandemic delays acknowledged: The court recognized that delays caused by COVID-19 cannot be used as a reason to deny intending parents their right to opt for surrogacy.

Court’s Observations

The Supreme Court clarified that the ruling does not challenge the validity of the age restrictions themselves under the Surrogacy Act. Rather, it focuses on ensuring fair treatment of couples already in the process before the Act’s commencement.

Justice R Mahadevan highlighted that the “vested rights” of intending parents must be protected, striking a balance between the legislative intent behind age limits and safeguarding the rights of couples already pursuing surrogacy.

Impact on Prospective Parents

This ruling brings relief to couples who were caught in the transition between previous norms and the new law. Many couples who had already invested in embryo freezing or surrogacy arrangements can now continue without the fear of being barred due to age restrictions imposed after the Act came into effect.

Legal experts note that the judgment reinforces the principle of protecting vested rights and highlights the importance of considering practical realities, such as ongoing medical procedures and unforeseen delays, while enforcing new laws.