Brief Background
The Supreme Court’s decision in Vijaya Kumari S & Ors. v. Union of India & Ors, 2025 SCC OnLine SC 2195 addresses a constitutional challenge to Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which imposes age limits on intending couples seeking surrogacy. The provision mandates that the female partner must be between 23 and 50 years of age, and the male between 26 and 55 years, on the date of certification. This matter pertained to three couples (Petitioners) who had initiated surrogacy procedures prior to the Act’s enforcement. It was submitted on their behalf that these age restrictions unfairly disqualified them from continuing their treatment and violated their constitutional rights.

Legal Submissions by the Parties
The Petitioners argued that the Act should not apply retrospectively to couples who had already begun surrogacy procedures. They contended that the freezing of embryos constituted a significant step in the surrogacy process, and that their right to continue treatment was a vested right under the previous legal regime. Further, the Petitioners from a constitutional perspective invoked Article 21, arguing that reproductive autonomy includes the right to decide when and how to have children. The petitioners also referred to international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Conference on Population and Development (ICPD), which affirm the right to parenthood and reproductive health.

On the contrary, the Additional Solicitor General, defended the age restrictions as necessary to protect the interests of surrogate mothers and children born through surrogacy. It was argued that surrogacy involves the use of another person’s body and cannot be claimed as a fundamental right. The age limits were justified on medical grounds, including declining gamete quality and increased risks of chromosomal abnormalities in older parents. The ASG emphasized that the Act was enacted to fill a legislative vacuum and ensure ethical and safe surrogacy practices.

Court’s Decision
The Court’s analysis centred on whether the age restrictions could be applied retrospectively to couples who had already initiated surrogacy procedures. It held that Section 4(iii)(c)(I) could not be applied to couples who had frozen embryos prior to the Act’s enforcement. The Court reasoned that the process of gamete extraction, fertilization, and embryo freezing constituted a clear manifestation of intent to pursue surrogacy. Applying the age limits retrospectively would unjustly deprive these couples of a right they had already exercised under the previous legal framework.

The Court reaffirmed that reproductive autonomy is protected under Article 21 and includes the right to procreate through surrogacy. It emphasized that the Act does not explicitly or implicitly indicate an intention to apply age restrictions retrospectively. The Court also noted that the Statement of Objects and Reasons of the Act focuses on preventing exploitation and protecting surrogate mothers and children, not regulating the age of intending couples. It found no compelling reason to curtail the rights of couples who had already begun the surrogacy process.

In its operative directions, the Court declared that Section 4(iii)(c)(I) does not apply retrospectively to couples who had frozen embryos before 25 January 2022. These couples are exempt from age-based certification requirements but must comply with other conditions under the Act and Rules. The Court also clarified that other similarly placed couples may seek relief from jurisdictional High Courts.

Justice Viswanathan delivered a concurring opinion, reinforcing the view that fertilization and embryo freezing prior to the Act conferred vested rights. He clarified that Section 53, which provides a transitional provision for surrogate mothers, operates independently and does not override the vested rights of intending couples.

Conclusion
In sum, the judgment affirms the constitutional protection of reproductive autonomy and safeguards the rights of couples who had initiated surrogacy procedures before the enactment of the Surrogacy (Regulation) Act, 2021. It strikes a balance between statutory regulation and individual rights, ensuring that legislative changes do not unfairly penalize those who acted in good faith under the previous legal regime.

By - C. George Thomas and Gurkaranbir Singh