Madras High Court
Mrs.Renuga Anandkumar vs The Union Of India
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. No.44471/2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
20.11.2025 10.12.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO. 44471 OF 2025
Mrs.Renuga Anandkumar .. Petitioner
- Vs -
1.The Union of India, rep. By its Secretary
Ministry of Health & Family Welfare
Department of Health Research
Nirman Bhavan, New Delhi 110 011.
2.The State of Tamil Nadu
Rep. Through the Assistant Reproductive
Technology & Surrogacy Authority
Health & Family Welfare Department
Secretariat, Fort St. George
Chennai 600 009.
3.The Joint Director
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W.P. No.44471/2025
District Appropriate Authority
Assisted Reproductive (Regulation) Technology, 2021
And Surrogacy (Regulation) Act, 2021
DMS, Chennai.
4.The National Assisted Reproductive Technology
And Surrogacy Board, Dept. Of Health Research
nd
2 Floor, IRCS Building, 1, Red Cross Road
New Delhi 110 001.
5.The Joint Director of Health Service
District Medical Board
219, Race Course Road
Coimbatore 641 047. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of mandamus directing the respondents to issue a
“Certificate of Essentiality” under Section 4 of the Surrogacy (Regulation) Act,
2021, to the petitioner without reference to the age restrictions prescribed for an
“intending woman” under the said Act as well as under Section 21 (g) of the
Assisted Reproductive Technology Regulation) Act, 2021 for the purpose of
continuing the surrogacy procedure in the light of the judgment of the Hon’ble
Supreme Court in Vijayakumari & anr. – Vs – Union of India.
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W.P. No.44471/2025
For Petitioner : Mr. Vikram Veerasamy
For Respondents : Ms. M.Sneha, Spl. Counsel
For RR-2, 3 & 5
ORDER
The petitioner has come before this Court seeking a direction to the respondents to issue a “Certificate of Essentiality” u/s 4 of the surrogacy (Regulation) Act, 2021 (for short ‘the Act’) to permit the petitioner to complete the process of surrogacy without applying the age restrictions, which, as per the judgment of the Apex Court in Vijayakumari & Anr. – Vs – Union of India (2025 INSC 1209) cannot be applied retrospectively, as otherwise it would be violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 21 of the Constitution of India.
2. It is the case of the petitioner that she was married to one Late V.Anandkumar on 15.7.2002 and inspite of a long, affectionate and happy marital 3 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 relationship, she was not able to conceive naturally. It is the further case of the petitioner that between 2004 and 2020, she underwent extensive fertility treatments, including multiple cycles of ovulation induction, IUI, IVF and surgical procedures, all of which went in vain. By 2020, due to severe ovarian decline, she was medically advised to proceed with an Oocyte Donation (OD) programme combined with surrogacy using her husband’s preserved sperm samples.
3. Upon such medical advice, in 2020, a lawful IVF/Oocyte Donation procedure was carried out resulting in the creation of twelve embryos using donor oocytes and her late husband’s sperm. These embryos were created and preserved before the Act came into force. Unfortunately her husband passed away due to COVID-19 complications on 26.9.2020. A subsequent surrogacy attempt in September, 2021 failed and six embryos remain cryopreserved.
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4. It is the further case of the petitioner that the petitioner is medically unfit to carry a pregnancy and can only become a mother through surrogacy. The entire reproductive procedure including fertilisation and embryo freezing was completed in 2021 prior to the coming into force of the Act on 25.1.2022.
Therefore, the statutory age limit prescribed for an “intending woman”, introduced after the freezing of embryos cannot be applied retrospectively to the case of the petitioner.
5. It is the further case of the petitioner that the Surrogacy Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (for short ‘ART Act’) for the first time prescribed an upper age limit of 45 years for widows opting for surrogacy and later restricted the use of donor gametes. These restrictions were absent when the petitioner began her surrogacy process. The petitioner has already challenged the gamete restrictions in W.P. No.1339 of 2024 which is pending before this Court.
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6. It is the further case of the petitioner that the Supreme Court in Vijayakumari’s case (supra) had held that the age restrictions under the Act operate only prospectively and not retrospectively and the creation and freezing of embryos having been commenced before 25.01.2022, it constitutes the commencement of the surrogacy process granting intending mothers a vested right to complete, as the Court recognized that the reproductive autonomy forms part of the fundamental right to life guaranteed under Article 21 of the Constitution.
7. It is the further case of the petitioner that her case falls squarely within the aforesaid ratio laid down in Vijayakumari’s case. The surrogacy process had already commenced prior to the commencement of the Act and, therefore, refusal to issue “Certificate of Essentiality” on the ground of age, which had come into play only after the Surrogacy Act and ART Act prescribed an age, it cannot be 6 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 applied retrospectively and such application is violative of the fundamental rights guaranteed to the petitioner under Article 14 and 21 of the Constitution and, therefore, left with no efficacious remedy, the present petition has been filed.
8. Learned counsel appearing for the petitioner submitted that the decision of the Apex Court in Vijayakumari’s case is a direct answer to the issue before this Court, as the Apex Court, in unambiguous and categorical terms has held that once the Stage A process has started the age restriction, which had come into force on and from 25.01.2022 under the Surrogacy Act and the ART Act would have no application and, therefore, the embryos having been freezed prior to the said point of time and the process of surrogacy having been started, necessarily the respondents are bound to issue the Certificate of Essentiality and they cannot lay their hand on the provisions of the Surrogacy Act and ART Act to claim that the age of the petitioner as also the surrogate mother is barred.
7https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 Therefore, he prays that necessary directions may be issued to the respondents to issue Certificate of Essentiality to the petitioner.
9. Learned Special Counsel appearing for respondents 2, 3 and 5 submitted that this Court may issue appropriate directions to the respondents and if the petitioner fulfils the criteria prescribed u/s 2 (1)(s) of the Act, the authorities will issue the Certificate of Essentiality within the time prescribed by this Court.
10. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.
11. The issue with regard to the retrospective application of age for intending couples, for availing the benefits of the procedure for surrogacy, stands 8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 settled through the decision of the Apex Court in Vijayakumari’s case (supra), the relevant portion, for better appreciation, is quoted hereunder :-
15.8 The real issue in each case is as to the dominant intention of the Legislature to be gathered from the language used, the object indicated, the nature of rights affected, and the circumstances under which the statute is passed. Applying the aforesaid principles to the present case, if the intending couple had attained the age of 50 and 55 years prior to the coming into force of the Act and had also commenced the surrogacy procedure would the certification be denied to them after the coming into force of the Act. Conversely, if the intending couple were within the age limits when they commenced the surrogacy procedure and on the date of certification sought under the Act had overreached the age limits will the certificate be denied to them? In our view, in both of the above situations the provision cannot apply retrospectively so as to deny the certification to the intending couples in the present cases on the premise that on the date of issuance of certification they had crossed the age bar. This is because there was no age restriction when the intending 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 couples commenced the surrogacy procedure, the Act has been enforced when the intending couple were in the midst of the procedure, at a crucial phase i.e., at the stage of creation of embryos and freezing the same. This was a sufficient manifestation of their intention. The next step was to transfer the frozen embryos to the uterus of the surrogate mother. At that stage the age bar under the Act has come into play. 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.
15.9 We therefore hold that creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples i.e., intending couples, in the instant cases. The earlier stages, namely, (i) Visit to surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining of the various permissions / certificates from Appropriate Authorities under Section 4 of the Act, (iv) 10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 Extraction of gametes of Stage A, are no doubt part of surrogacy procedure but are stages prior to the crystallization of the intention of the couple to undertake a surrogacy procedure an interpretation we are giving in the context of age barriers. Therefore, when there was no age restriction at the stage of creation of embryos and freezing them i.e., prior to the enforcement of the Act, when the intending couples are at the threshold of Stage B, the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right under Article 21 of the Constitution.
15.10 Therefore, the rule against retrospective operation of statutes applies in the instant case in order to preserve the rights of intending couples such as the petitioners/applicant in the present case. If we do not apply the aforesaid principle of interpretation of statutes we would failing in our duty to uphold the constitutional right of such intending couples under Article 21 of the Constitution. Therefore, we hold that the age 11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 bar does not apply to intending couples such as the ones we are considering in the present cases.
16. Thus, if an intending couple had -
commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and were at the stage of creation of embryos and freezing after extraction of gametes (Stage A of the diagram); and on the threshold of transfer of embryos to the uterus of the surrogate mother (Stage B of the diagram) The age restriction under Section 4(iii)(c)(I) of the Act would not apply. The competent authority, on being satisfied about the aforesaid conditions (i), (ii) and (iii) above shall issue the certification provided Rule 14 of the Rules are satisfied by the intending couples.” (Emphasis Supplied)
12. The Apex Court in the said decision, further held that where the Stage A process has started, the age bar would not be operational, even as per the 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 stand of the Government before the Court and the relevant portion is quoted hereunder :-
“5. For the intending couples, like the petitioners in this case, who froze the embryos and completed the following Stage A process, as in the diagram provided below by the learned Additional Solicitor General, there was no legal bar to resort to the said process:-
RIGHT INCLUDES LIBERTY – SALMOND: -
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6. Salmond on Jurisprudence, Twelfth Edition by P. J.
Fitzgerald, while dealing with the aspect of legal rights in the wider sense of the term, sets out the principle that there are things which an individual may do without being prevented by the law. It further mentions that the sphere of one’s legal liberty is that sphere of activity within which the law is content to leave the individual alone. Salmond asserts that “the term right is often used in a wide sense to include such liberty.” (at page 225) “Liberties and no-rights. Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties (sometimes called licences or privileges) are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 liberty. I have a right (that is to say, I am at liberty) to do as I please with my own; but I have no right and am not at liberty to interfere with what is another's. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel.
I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me.” (Emphasis supplied)
7. At a time when there was no disability attached, the petitioners exercised the liberty that inhered in them and certain rights accrued to them once they finished the Stage A process. It is at this stage that the Act has stepped in and in Section 4(iii)(c)(I) created a disability for them by prescribing that unless the intending couple are married and between the age of 23-50 years in case of female and 26-55 years in case of male on the day of certification, eligibility certificate for initiating, performing, undertaking or conducting surrogacy or surrogacy procedure shall not be issued. It is in this scenario that the question whether the age restriction under section 15 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 4(iii)(c)(I) is applicable to the intending couple herein, has arisen for consideration.
VESTED/CONTINGENT RIGHTS Vs. HOPE/SPES:-
Salmond on Jurisprudence, Twelfth Edition by P. J. Fitzgerald, defines vested rights, contingent rights and distinguishes them from a mere hope or spes. They are set out hereinbelow (page 245):-
“Vested and contingent rights:- A right vests when all the facts have occurred which must by law occur in order for the person in question to have the right. A right is contingent when some but not all of the vestitive facts, as they are termed, have occurred. A grant of land to A in fee simple will give A a vested right of ownership. A grant to A for life and then to B in fee simple if he survives A, gives B a contingent right. It is contingent because some of the vestitive facts have not yet taken place, and indeed may never do so: B may not survive A. If he does, his formerly contingent right now becomes vested. A contingent right then is a right that is incomplete.
16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 A contingent right is different, however, from a mere hope or spes. If A leaves B a legacy in his will, B has no right to this during A's lifetime. He has no more than a hope that he will obtain the legacy; he certainly does not have an incomplete right, since it is open to A at any time to alter his will” (Emphasis Supplied)
9. Parenthood for the intending couple was not merely a hope or spes, but by completing the Stage ‘A’ process, certain vestitive facts did indeed crystallize and hence, the Act, as we read then, does not seek to divest that.
10. The Delhi High Court in Mrs. D and Anr. v. Union of India and Anr. (Writ Petition (Civil) No.12395/2023), held as under: -
“12.The Petitioners have encountered a roadblock in obtaining the eligibility certificate, primarily due to their age exceeding the prescribed limits. However, it is essential to note that the Petitioners commenced their IVF treatment, and embryo was created on 03rd December, 2021, when the age restrictions outlined in both the SR Act and the ART Act, were not yet in effect. 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 Furthermore, it is essential to emphasize that the embryos were created through the fertilization of gametes that were recovered and frozen when the Petitioners’ ages were well below the age limit introduced under the impugned provision. Prima facie, the impugned provision cannot be applied retrospectively, thereby disqualifying individuals who had already initiated or undergone the ART process, in accordance with the prevailing laws. Mr. Chetan Sharma, learned Additional Solicitor General, has also fairly pointed out that the legal implications of the provision should be prospective in nature. Considering these crucial facts, in our opinion, the impugned provision should not be interpreted as an obstacle to the Petitioners’ pursuit of surrogacy.
13. At this juncture, we must reference a judgment passed by the High Court of Kerala in Nandini K (Supra), as it bears significant relevance to the issue at hand. In that case, the Court was dealing with Section 21(g) of the ART Act, which prescribes the age limit for couples desirous of availing ART. It was held that if the 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 prohibition under Section 21(g) is understood to be preventing continuance of ART services that had already commenced, it would amount to unreasonable and unjustified restriction on the reproductive choice of the commissioning couple, and would militate against the liberty guaranteed under Article 21 of the Constitution. As a result, the Court determined that couples who had initiated IVF treatment prior to 25th January, 2022 (the date of the enforcement of the ART Act) should not be adversely affected by the age prescription outlined in the ART Act. This precedent, set by the High Court of Kerala, sheds significant light on the prospective applicability of standing provisions, and reinforces the argument in favour of the Petitioners.” (Emphasis supplied) TRANSITIONAL PROVISION – SECTION 53 – OPERATES IN ITS OWN SPHERE:-
11. The argument of Ms. Aishwarya Bhati, the learned Additional Solicitor General, that the Act provides a transitional provision and only cases covered under the 19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 transitional provision could be protected cannot be accepted.
The transitional provision operates in its own sphere and reads as under:-
“53. Transitional provision.— Subject to the provisions of this Act, there shall be provided a gestation period of ten months from the date of coming into force of this Act to existing surrogate mothers' to protect their well being.”
12. This provision cannot be construed as a free license under the Act to divest vested right. This provision does not make the Act retrospective in a manner as to divest vested rights as set out above. As we construe the Act, vested rights are not divested, and the new disability created will not apply to cases like that of the petitioners (intending couples), and their rights do not stand neutralised.”
13. From the ratio laid down above, it is clear that where the rights vested in the intending couples were initiated into action by freezing of embryos prior to the amendment to the Surrogacy Act, which prescribed age limit, the said 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 prescription of age limit would operate only prospectively and it would not have retrospective application.
14. In the present case, the petitioner and her late husband had undergone the medical process of oocyte donation, fertilisation and creation of embryos way back in the year 2021, which was well before the coming into force of the Surrogacy Act, at which point of time there was no statutory limitation on the age of the intending woman opting for surrogacy nor any restriction on the use of donor gametes. Such being the case, the ratio laid down in Vijayakumari’s case would stand squarely attracted to the case of the petitioner.
15. The prescription of age for intending woman as prescribed u/s 2 (1)(s) was only pursuant to Surrogacy Act, 2021, which came into force on 25.1.2022 and prior to that there being no prescription of age and the petitioner and had husband had already began the process of surrogacy and cryopreserved the 21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 embryos way back in the year 2021 by using the sperm of her late husband, the right of the petitioner to proceed with surrogacy using the embryos became a vested and legitimate right under the medical and legal framework as was in existence at that point of time and the later enactment of the Surrogacy Act, 2021 fixing the age will not act as a bar for the act of surrogacy using the embryos, which have already been frozen.
16. As held by the Apex Court, when the intending couple had already frozen their embryos, this was a clear manifestation of their intention and, therefore, the next step was only to transfer the frozen embryos to the uterus of the surrogate mother, at which point of time the age bar came into play and such bar cannot operate retrospectively, as the intending couples have a constitutional right which was unfettered when the intending couples commenced the surrogacy process and the subsequent Act cannot curtail the rights of the petitioner. Therefore, the respondents are bound to give the 22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 Certificate of Eligibility to the petitioner and they cannot take recourse to Section 2 (1)(s) of the Surrogacy Act to insist on prescription of age.
17. Further, it is also the specific case of the petitioner that a surrogacy agreement was entered into in September, 2021, before the coming into force of the Surrogacy Act on 25.1.2022 and applying the analogy as has been prescribed in Vijayakumari’s case (supra), the petitioner having been on the threshold of transfer of embryos to the uterus of the surrogate mother, the prescription of age of the surrogate mother prescribed u/s 4 (iii)(b)(I) cannot also be applied retrospectively and it would only have prospective application. Merely because the respondents have not issued the eligibility certificate till date cannot be a ground to apply the age restriction prescribed u/s 4 (iii)(b)(I) as the petitioner was on the threshold of transfer of embryos to the uterus of the surrogate mother by entering into a surrogate agreement in September, 2021 itself. 23
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18. For the reasons aforesaid, the writ petition is allowed and a mandamus is issued to the respondents to issue Certificate of Essentiality” u/s 4 of the Surrogacy (Regulation) Act, 2021 (for short ‘the Act’) by permitting the petitioner to complete the process of surrogacy without applying the age restrictions as provided for under the Surrogacy Act and the said Certificate of Essentiality shall be issued within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs.
10.12.2025
Index : Yes / No
GLN
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W.P. No.44471/2025
To
1.The Secretary
Ministry of Health & Family Welfare
Department of Health Research
Nirman Bhavan, New Delhi 110 011.
2.The Assistant Reproductive
Technology & Surrogacy Authority
Health & Family Welfare Department
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai 600 009.
3.The Joint Director
District Appropriate Authority
Assisted Reproductive (Regulation) Technology, 2021 And Surrogacy (Regulation) Act, 2021 DMS, Chennai.
4.The National Assisted Reproductive Technology And Surrogacy Board, Dept. Of Health Research nd 2 Floor, IRCS Building, 1, Red Cross Road New Delhi 110 001.
5.The Joint Director of Health Service District Medical Board 219, Race Course Road Coimbatore 641 047.
25https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 M.DHANDAPANI, J.
GLN PRE-DELIVERY ORDER IN W.P. NO. 44471 OF 2025 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm ) ____________ W.P. No.44471/2025 Pronounced on 10.12.2025 28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/12/2025 03:56:37 pm )