Supreme Court of India
Arun Muthuvel vs Union Of India on 9 October, 2025
2025 INSC 1209
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.331 OF 2024
VIJAYA KUMARI S & ANOTHER …PETITIONERS
Versus
UNION OF INDIA …RESPONDENT
WITH
WRIT PETITION (CIVIL) NO.809 OF 2024
URVASHI & ANOTHER …PETITIONERS
Versus
UNION OF INDIA & ORS. …RESPONDENTS
AND
I.A. NO.181569 OF 2022
IN
WRIT PETITION (CIVIL) NO.756 OF 2022
ARUN MUTHUVEL …PETITIONER
Versus
UNION OF INDIA & OTHERS …RESPONDENTS
IN THE MATTER OF:
SADASIVAM P.
& MOHANAMBAL S. …APPLICANTS
Signature Not Verified
Digitally signed by
NEETU SACHDEVA
Date: 2025.10.09
16:54:17 IST
Reason:
1
JUDGMENT
NAGARATHNA, J.
These two writ petitions and one interlocutory application
arise out of a set of similar but slightly differentiated facts. The
common legal question arising out of them is the application of the
age-restrictions on ‘intending couples’ under Section 4(iii)(c)(I) of
the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as “the
Act” for the sake of brevity).
2. The Act came into force with effect from 25.01.2022. The
objects of the Act are the regulation of the practice and process of
surrogacy and for matters connected therewith or incidental
thereto. The relevant definitions of the Act read as under:
“2. Definitions. — (1) In this Act, unless the context
otherwise requires,—
xxx
(b) “altruistic surrogacy” means the surrogacy in which no
charges, expenses, fees, remuneration or monetary
incentive of whatever nature, except the medical expenses
and such other prescribed expenses incurred on surrogate
mother and the insurance coverage for the surrogate
2
mother, are given to the surrogate mother or her
dependents or her representative;
(c) “appropriate authority” means the appropriate
authority appointed under Section 35;
xxx
(g) “commercial surrogacy” means commercialisation of
surrogacy services or procedures or its component services
or component procedures including selling or buying of
human embryo or trading in the sale or purchase of
human embryo or gametes or selling or buying or trading
the services of surrogate motherhood by way of giving
payment, reward, benefit, fees, remuneration or monetary
incentive in cash or kind, to the surrogate mother or her
dependents or her representative, except the medical
expenses and such other prescribed expenses incurred on
the surrogate mother and the insurance coverage for the
surrogate mother;
(h) “couple” means the legally married Indian man and
woman above the age of 21 years and 18 years
respectively;
(i) “egg” includes the female gamete;
(j) “embryo” means a developing or developed organism
after fertilisation till the end of fifty-six days;
xxx
(l) “fertilisation” means the penetration of the ovum by the
spermatozoan and fusion of genetic materials resulting in
the development of a zygote;
(m) “foetus” means a human organism during the period
of its development beginning on the fifty-seventh day
following fertilisation or creation (excluding any time in
which its development has been suspended) and ending at
the birth;
3
(n) “gamete” means sperm and oocyte;
xxx
(r) “intending couple” means a couple who have a medical
indication necessitating gestational surrogacy and who
intend to become parents through surrogacy;
xxx
(v) “oocyte” means naturally ovulating oocyte in the female
genetic tract;
xxx
(zd) “surrogacy” means a practice whereby one woman
bears and gives birth to a child for an intending couple
with the intention of handing over such child to the
intending couple after the birth
xxx
(zf) “surrogacy procedures” means all gynaecological,
obstetrical or medical procedures, techniques, tests,
practices or services involving handling of human gametes
and human embryo in surrogacy;
(zg) “surrogate mother” means a woman who agrees to bear
a child (who is genetically related to the intending couple
or intending woman) through surrogacy from the
implantation of embryo in her womb and fulfils the
conditions as provided in sub-clause (b) of clause (iii) of
Section 4;
(zh) “zygote” means the fertilised oocyte prior to the first
cell division.
(2) Words and expressions used herein and not defined in
this Act but defined in the Assisted Reproductive
Technology Act shall have the meanings respectively
assigned to them in that Act.”
4
2.1 Section 3 speaks of prohibition and regulation of surrogacy
clinics, while Section 4 deals with regulation of surrogacy and
surrogacy procedures. The expressions “surrogacy” and “surrogacy
procedures” are defined in clauses (zd) and (zf) respectively of sub-
section (1) of Section 2 of the Act. Sections 4 and 53 read as under:
“4. Regulation of surrogacy and surrogacy
procedures.— On and from the date of commencement of
this Act, —
(i) no place including a surrogacy clinic shall be used or
cause to be used by any person for conducting
surrogacy or surrogacy procedures, except for the
purposes specified in clause (ii) and after satisfying all
the conditions specified in clause (iii);
(ii) no surrogacy or surrogacy procedures shall be
conducted, undertaken, performed or availed of,
except for the following purposes, namely:
(a) when an intending couple has a medical
indication necessitating gestational surrogacy:
Provided that a couple of Indian origin or an
intending woman who intends to avail surrogacy,
shall obtain a certificate of recommendation from
the Board on an application made by the said
persons in such form and manner as may be
prescribed.
Explanation.—For the purposes of this sub-
clause and item (I) of sub-clause (a) of clause (iii)
the expression “gestational surrogacy” means a
practice whereby a surrogate mother carries a
child for the intending couple through
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implantation of embryo in her womb and the child
is not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for
commercialisation of surrogacy or surrogacy
procedures;
(d) when it is not for producing children for sale,
prostitution or any other form of exploitation; and
(e) any other condition or disease as may be specified
by regulations made by the Board;
(iii) no surrogacy or surrogacy procedures shall be
conducted, undertaken, performed or initiated, unless
the Director or in-charge of the surrogacy clinic and
the person qualified to do so are satisfied, for reasons
to be recorded in writing, that the following conditions
have been fulfilled, namely:—
(a) the intending couple is in possession of a
certificate of essentiality issued by the appropriate
authority, after satisfying itself, for the reasons to
be recorded in writing, about the fulfilment of the
following conditions, namely: —
(I) a certificate of a medical indication in favour
of either or both members of the intending
couple or intending woman necessitating
gestational surrogacy from a District Medical
Board.
Explanation.—For the purposes of this
item, the expression “District Medical Board”
means a medical board under the
Chairpersonship of Chief Medical Officer or
Chief Civil Surgeon or Joint Director of Health
Services of the district and comprising of at
least two other specialists, namely, the chief
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gynaecologist or obstetrician and chief
paediatrician of the district;
(II) an order concerning the parentage and
custody of the child to be born through
surrogacy, has been passed by a court of the
Magistrate of the first class or above on an
application made by the intending couple or
the intending woman and the surrogate
mother, which shall be the birth affidavit after
the surrogate child is born; and
(III) an insurance coverage of such amount and in
such manner as may be prescribed in favour
of the surrogate mother for a period of thirty-
six months covering postpartum delivery
complications from an insurance company or
an agent recognised by the Insurance
Regulatory and Development Authority
established under the Insurance Regulatory
and Development Authority Act, 1999 (41 of
1999);
(b) the surrogate mother is in possession of an
eligibility certificate issued by the appropriate
authority on fulfilment of the following conditions,
namely: —
(I) no woman, other than an ever married woman
having a child of her own and between the age
of 25 to 35 years on the day of implantation,
shall be a surrogate mother or help in
surrogacy by donating her egg or oocyte or
otherwise;
(II) a willing woman shall act as a surrogate
mother and be permitted to undergo
surrogacy procedures as per the provisions of
this Act:
7
Provided that the intending couple or the
intending woman shall approach the
appropriate authority with a willing woman
who agrees to act as a surrogate mother;
(III) no woman shall act as a surrogate mother by
providing her own gametes;
(IV) no woman shall act as a surrogate mother
more than once in her lifetime:
Provided that the number of attempts for
surrogacy procedures on the surrogate
mother shall be such as may be prescribed;
and
(V) a certificate of medical and psychological
fitness for surrogacy and surrogacy
procedures from a registered medical
practitioner;
(c) an eligibility certificate for intending couple is
issued separately by the appropriate authority on
fulfilment of the following conditions, namely:--
(I) the intending couple are married and between
the age of 23 to 50 years in case of female and
between 26 to 55 years in case of male on the
day of certification;
(II) the intending couple have not had any
surviving child biologically or through
adoption or through surrogacy earlier:
Provided that nothing contained in this
item shall affect the intending couple who
have a child and who is mentally or physically
challenged or suffers from life threatening
disorder or fatal illness with no permanent
cure and approved by the appropriate
8
authority with due medical certificate from a
District Medical Board; and
(III) such other conditions as may be specified by
the regulations.
xxx
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.”
3. Presently, we are concerned with Section 4(iii)(c)(I). The same
states that on and from the date of commencement of the Act, i.e.,
25.01.2022, an intending couple requires an ‘eligibility certificate’
issued by the appropriate authority certifying that the intending
couple are married and between the age of 23 to 50 years in case of
the female and between 26 to 55 years in case of the male on the
day of certification. The appropriate authority under Section 36 of
the Act has to consider and grant or reject any application under
clause (vi) of Section 3 and sub-clauses (a) to (c) of clause (iii) of
Section 4 within a period of ninety days which also includes the
power to issue eligibility certificate.
9
3.1 The common grievance of the petitioners and applicants
herein is with regard to the upper age limit fixed for the intending
couple, inasmuch as the female cannot be over and above 50 years
of age and the male cannot be over and above 55 years of age.
4. In Writ Petition (Civil) No.331 of 2024, petitioner No.1 is the
wife, and petitioner No.2 is the husband (hereinafter referred to
collectively as ‘intending couple No.1’). In 2019, they were married
under the Hindu Marriage Act, 1955. This was the second marriage
for both the petitioners. Petitioner No.1 has one daughter from her
previous marriage, and petitioner No.2 has two daughters from his
previous marriage. All three children have attained adulthood and
are living abroad.
4.1 The petitioners do not have children (biological, adopted or
surrogate) together. Consequently, in 2020, they began IVF
treatment to conceive a child. However, the couple was advised to
opt for conceiving a child through surrogacy due to petitioner No.1’s
advanced age, excessive bleeding during previous pregnancies and
other issues.
10
4.2 On 28.08.2020, the first attempt at ‘egg retrieval’ (the process
by which eggs are collected from a woman’s ovaries) from petitioner
No.1 failed due to her age. On 30.10.2020, she was diagnosed with
ovarian cysts. The petitioners subsequently approached Iswarya
Fertility Centre, Chennai, where two eggs were successfully
retrieved on 26.01.2021 and the embryos were frozen in preparation
for transfer into a surrogate womb.
4.3 However, the petitioners contend that the process of
transferring the embryo into the surrogate womb was stalled due to
unforeseeable circumstances beyond their control, i.e., the
outbreak of the COVID-19 pandemic. Thereafter, on 25.01.2022,
the Act came into effect and on 21.06.2022, the Surrogacy
(Regulation) Rules, 2022 (for short, “Rules”) were promulgated.
4.4 On 03.02.2024, the petitioners took a second opinion from
Iswarya Fertility Centre, Chennai, whose report opined that the
couple needs surrogacy, in view of the risks during delivery and
pregnancy experienced by petitioner No.1 in the past. However, it
also noted that “the law does not permit surrogacy in view of age”.
11
Therefore, aggrieved, intending couple No.1 has preferred this writ
petition, challenging the propriety of the age-restrictions under the
Act, and also contending that they had commenced surrogacy
procedures before the enforcement of the Act.
5. In Writ Petition (Civil) No.809 of 2024, petitioner No.1 is the
wife, and petitioner No.2 is the husband (hereinafter referred to
collectively as ‘intending couple No.2’). They were married on
07.02.2011 and registered their marriage under the Special
Marriage Act, 1954. Intending couple No.2 submitted that they have
been unable to conceive a child naturally with multiple
unsuccessful attempts at frozen embryo transfer between the years
2012 and 2018. Intending couple No.2 submitted that in the year
2019, two embryos were made at the Southern Cross Fertility
Centre, Mumbai, but the onset of the COVID-19 pandemic in 2020
prevented the continuation of the process of surrogacy.
5.1 In 2022, the Act and the Rules were enforced, following
which, the petitioners became ineligible for surrogacy procedures.
This is because at the time of enforcement of the Act and Rules,
12
petitioner No.2 had crossed the age limit of 55 years prescribed for
males under the Act. As on the date that the Writ Petition was filed,
i.e., 21.10.2024, petitioner No.2 was 58 years old. Therefore, the
intending couple No.2 has preferred this writ petition, contending
that they have demonstrated a bona fide intent to avail the option
of surrogacy through multiple aborted and failed attempts over the
years. Further, they submitted that if they had anticipated the
stringent age-related criteria under the Act, they would have availed
the surrogacy option well in time.
6. The applicants in I.A. No.181569 of 2022 are hereinafter
collectively referred to as ‘intending couple No.3’. As on date of the
application, i.e., 23.11.2022, the applicant-husband was about 62
years old and the applicant-wife was about 56 years old. Intending
couple No.3 lost their only child in 2018. Although they desired to
conceive a child naturally again, they were advised to opt for In-
Vitro Fertilisation (IVF) due to their advanced age.
6.1 In May 2019, the applicant-wife underwent an examination,
and was deemed fit to bear an embryo with donor oocytes. However,
13
due to the presence of fibroids in her uterus, it was advised that IVF
be pursued with donor eggs. The applicant-wife then underwent
Myomectomy Laparoscopic Surgery on 22.11.2019 and was
nonetheless deemed fit to bear an embryo.
6.2 Intending couple No.3 submitted that the process was
subsequently put on hold due to the COVID-19 pandemic, during
which the applicant wife developed hypertension, due to which, the
couple received medical advice that surrogacy was the advisable
course of action. Having decided to transfer the embryo to the
surrogate by April 2021, the applicants submitted that this process
was further delayed by the second wave of the pandemic.
Subsequently, although an embryo was successfully transferred to
a surrogate mother in January 2022, the surrogate mother suffered
a miscarriage and the pregnancy was not successful.
6.3 Thereafter, the Act and the Rules were enforced and
intending couple No.3 has been rendered ineligible for undergoing
surrogacy procedures since both applicant-wife and husband are
above the age-limit of 50 years and 55 years respectively. Therefore,
14
intending couple No.3 has preferred this application in W.P. (C)
No.756/2022, contending that they had already begun the process
of conducting medical procedures for the transfer of embryos to an
identified surrogate mother. When they began such procedures,
they were well within the ambit of the then prevailing law. It is only
subsequently that they have been barred by the Act. Intending
couple No.3 submitted that as on date, the embryos are ready to be
transferred to the surrogate mother.
Submissions:
7. We have heard learned senior counsel Ms. Pinky Anand and
Ms. Mohini Priya learned counsel for intending couple Nos.1, 2 and
3, and learned Additional Solicitor General (ASG) Ms. Aishwarya
Bhati for the respondent-Union of India and perused the material
on record.
7.1 Learned senior counsel for intending couple No.1 submitted
as follows:
7.1.1 The provisions of the Act cannot be applied retrospectively
to intending couples who had started surrogacy procedures much
prior to its enforcement. In support of this contention, the
15
judgement of a five-judge bench of this Court in CIT vs. Vatika
Township (P) Ltd., (2015) 1 SCC 1 was relied on, the relevant
portion of which is produced below:
“28. Of the various rules guiding how a legislation has to
be interpreted, one established rule is that unless a
contrary intention appears, a legislation is presumed not
to be intended to have a retrospective operation. The idea
behind the rule is that a current law should govern current
activities. Law passed today cannot apply to the events of
the past.”
7.1.2 In this case, the intending couple began their surrogacy
procedures in January 2021 by freezing their embryos. When this
process of freezing was begun, it was completely within the ambit of
the then-prevailing law, which prescribed no upper age limit for
either a man or woman to avail of surrogacy.
7.1.3 On a broader level, it was submitted that the fixation of an
upper age-limit lacks rationale or justifiable basis, since the
physical, emotional and financial capability to raise a child are not
merely a function of age alone. Further, the imposition of an age cap
on intending couples has no nexus with the core concerns of the
16
Act, namely protecting surrogate mothers from exploitation and
helping infertile parents bear children.
7.1.4 From a constitutional perspective, it was submitted that
the upper age-limit falls foul of the right to reproductive autonomy
under Article 21 of the Constitution. This right enables a woman to
make autonomous decisions regarding, if, when, and in what
manner to have children. Our attention was drawn to the following
extract from the decision of this Court in X2 vs. State (NCT of
Delhi), (2023) 9 SCC 433 (“X2 vs. State”):
“101. The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also
includes the constellation of freedoms and entitlements
that enable a woman to decide freely on all matters relating
to her sexual and reproductive health. Reproductive rights
include the right to access education and information
about contraception and sexual health, the right to decide
whether and what type of contraceptives to use, the right
to choose whether and when to have children, the right to
choose the number of children, the right to access safe and
legal abortions, and the right to reproductive healthcare.
Women must also have the autonomy to make decisions
concerning these rights, free from coercion or violence.”
7.1.5 In light of this decision, it was submitted that the age-
restrictions under the Act run contrary to the constitutional right
17
afforded to women to make unhindered decisions regarding their
reproductive choices.
7.1.6 Further, it was submitted that the principle of
‘transformative constitutionalism’ supports the view that laws
regulating new methods of family planning and childbearing, such
as the Act, must align and support such societal shifts and therefore
must not impose undue legal or regulatory burdens.
7.1.7 Learned counsel also submitted examples of
international conventions and treaties to which India is a signatory
that enshrine the right to parenthood. The Convention on
Elimination of All Forms of Discrimination Against Women
(CEDAW), 1979 (ratified by India in the year 1993) recognises a
woman’s right to freely make decisions on having children and
access reproductive health services. The International Conference
on Population and Development (ICPD) Programme of Action,
adopted in 1994 with India as a signatory, recognises reproductive
rights and the importance of reproductive health services.
18
7.1.8 Therefore, intending couple No.1 have prayed that the
fixation of an upper-age limit for intending couples availing
surrogacy be struck down/read down. Further, they submitted that
they were subject to exceptional and unforeseeable circumstances
and hence pray that directions be issued to the National Board to
allow them to proceed with surrogacy using their embryos frozen in
the year 2021, i.e., prior to the coming into force the Act.
7.1.9 The right to access surrogacy procedures being a right that
vested with couples that began procedures prior to the enforcement
of the Act, cannot be taken away by a subsequent law, is a
contention that was also advanced by learned senior counsel for
intending couple No.1. In this regard, our attention was drawn to a
judgement of this Court in S.L. Srinivasa Jute Twine Mills (P)
Ltd. vs. Union of India, (2006) 2 SCC 740 (“S.L. Srinivasa Jute
Twine Mills”).
7.1.10 Therefore, it was submitted that the language of Act does
not specifically manifest its intention to apply the age-related
restrictions retrospectively to intending couples who had begun the
19
procedure for surrogacy prior to the enforcement of the Act. Hence,
it cannot affect the vested right afforded to the petitioners to
continue the surrogacy process that they had lawfully begun under
the pre-existing legal regime.
7.1.11 Similarly, learned senior counsel for intending couple
No.1 also drew our attention to the view of this Court in K.
Gopinathan Nair vs. State of Kerala, (1997) 10 SCC 1
(“Gopinathan Nair”), wherein the majority observed that “it is now
well settled that where a statutory provision which is not expressly
made retrospective by the legislature seeks to affect vested rights
and corresponding obligations of parties, such provision cannot be
said to have any retrospective effect by necessary implication.”
7.2 Learned counsel for intending couple No.2 submitted as
follows:
The Act is a welfare legislation enacted to benefit couples bereft
of the ability to conceive children naturally. However, the age-limits
in Section 4(iii)(c)(I) bar couples who have unknowingly and due to
bona fide reasons, crossed the thresholds. Petitioner No.1 (the wife)
20
suffered repeated spontaneous abortions which demonstrates the
bona fide reason and necessity to pursue surrogacy treatment.
Therefore, the Act has taken away the vested’ right of the petitioners
by imposing an age limit on availing the option of surrogacy.
7.2.1 Both intending couple Nos.1 and 2 drew our attention to
an order of the Delhi High Court dated 10.10.2023 in Mrs. D & Anr.
vs. Union of India & Anr., W.P.(C) No.12395/2023, wherein it
granted interim protection to a couple that had similarly been
denied surrogacy treatment due to the age-limits, despite having
frozen embryos prior to the enforcement of the Act.
7.2.2 Learned counsel for intending couple No.2 further
submitted that had the petitioners known about or anticipated the
enforcement of such a law with stringent criteria, they would have
specifically made sure to pursue surrogacy procedures (beyond the
freezing of embryos) before petitioner No.2 (the husband) crossed
the age limit. Therefore, ‘transitional provision’ that accommodated
couples who had already commenced the surrogacy procedures in
some form, is limiting irrational and arbitrary.
21
7.2.3 In this regard, our attention was drawn to a judgement of
the Kerala High Court in Nandini K. vs. Union of India, 2022 SCC
OnLine Ker 8235 in the context of similar age-restrictions under
the Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART
Act’). It was observed that while the prescription of an upper age
limit was not so “excessive and arbitrary” as to warrant judicial
interference, the absence of a transitional provision was irrational
and arbitrary.
7.2.4 Therefore, intending couple No.2 have prayed that Section
4(iii)(c)(I) of the Act be declared unconstitutional and that the
petitioners may be permitted to continue surrogacy treatment
despite the age of the petitioner-husband.
7.3 Learned counsel for intending couple No.3 submitted that the
applicants, aged 62 (husband) and 56 (wife) respectively stand
excluded from the process. Further, the applicant-wife is also
excluded from the definition of ‘intending woman’ under the Act, as
well as a ‘woman’ under the Assisted Reproductive Technology
22
(Regulation) Act, 2021, leaving the couple incapable of pursuing
Assisted Reproductive Technology (ART) methods.
7.3.1 Learned counsel further submitted that the applicants had
already selected an appropriate surrogate mother and were in the
process of conducting the medical procedures required to transfer
the embryos (which were ready) to the surrogate mother. Their
disentitlement and ineligibility under the Act happened after they
had already take substantial steps prior thereto. On the date that
they began medical procedures, they were well within the ambit of
the then prevailing law. As a matter of urgency, learned counsel
submitted that the last semen analysis of the applicant husband
was conducted at age 58. He is now already 62 and the chances of
medical abnormalities and associated issues may rise.
7.3.2 Therefore, intending couple No.3 have prayed for directions
to permit them to proceed with the medical procedures associated
with carrying out a successful surrogacy.
8. Per contra, learned ASG for respondent-Union of India submitted
that the object of the Act is to protect the individuals who are the
23
most vulnerable (and consequently, whom the State has a higher
degree of responsibility to protect) in the process, namely the
surrogate mother and the child born through surrogacy.
Specifically, the child has a right to adequate guardianship, which
might otherwise have an impact on its quality of life.
8.1 Since surrogacy procedures involve the use of the body of a
third individual, i.e., the surrogate mother, it was submitted that
surrogacy can never be seen as the preferred option to conceive a
child and should only be used as a last-resort measure. This is in
contrast to the relatively less-restrictive regime under the ART Act,
since ART procedures are conducted on one’s own body.
8.2 Further, since the Constitution does not recognise a right
over another individual’s body, the right to avail surrogacy cannot
be claimed as a fundamental right and exists purely as a statutory
right subject to the conditions/restrictions prescribed in the Act.
The right to reproductive autonomy is personal in nature (since
Article 21 recognises the right to ‘personal liberty’) and does not
subsume an individual’s right to use another’s body.
24
8.3 Learned ASG submitted, that prior to the Act, courts were
forced to adjudicate legal issues such as the right to parenthood
through surrogacy in a legislative vacuum. Therefore, there was a
need to ensure that the rights and interests of surrogate mothers
and children are adequately protected.
8.4 It was submitted that the present trend in India is that the
average age at which couples are getting married is higher than
before. Therefore, the impugned upper age-limits on intending
couples are also in alignment with this trend. The average age of
menopause in India is 46.2 years and women older than 50 years
of age have a higher likelihood of conceiving children with
chromosomal conditions. Further, the sperm quality in men is
compromised above the age of 55. Therefore, after consultation with
stakeholders and domain experts, in the interests of surrogate
children, a need was felt to place an upper-age limit on intending
couples in order to ensure that the child born through surrogacy
has a higher chance of a healthy life and access to adequate
guardianship. It was also submitted that the child has a right to be
raised by two parents of a reasonable age until the child attains
25
majority and that this right supersedes any right claimed by the
intending couple to bear a child through surrogacy. This is
especially so when they have crossed the age-limits in question and
may be classified incapable of providing adequate guardianship to
the child.
8.5 Learned ASG also submitted that attempting to seek children
beyond the prescribed age is ‘against the natural state of being’,
since even natural birth is not unrestricted by age. By age 45, the
fertility of a woman generally declines to such an extent that a
natural pregnancy is unlikely.
8.6 In response to arguments challenging the constitutionality of
the age-restrictions, it was submitted that the right to avail
surrogacy is now only a statutory right and not a fundamental right.
Further, the age-restrictions are based on a rational principle
founded on scientific reasoning, introduced on the advice of domain
experts. Therefore, it cannot be contended that the age-limits are
arbitrary.
26
8.7 It was further contended that while the classification created
by the age-limits can be tested under Article 14, the fixation of the
age-limits itself is a matter of legislative prerogative. In this regard,
reliance was placed on the decision of this Court in Javed vs. State
of Haryana, (2003) 8 SCC 369, wherein this Court upheld a
legislation that disqualified persons having more than two living
children from holding certain Panchayat offices as an exercise of
legislative prerogative and wisdom which was not open to judicial
scrutiny.
8.8 On the issue of non-retrospective application, learned ASG
submitted that the Act does not recognise the ‘cryopreservation’ of
gametes/embryos as a point of commencement of surrogacy
procedure. Further, Parliament has indeed applied its mind to
existing rights of individuals in the surrogacy process by making a
‘transitional provision’ in Section 53 of the Act. Therefore, it was
submitted that the transitional period of ten months was only
provided in favour of “existing surrogate mothers” and cannot be
read to include any other category of people and this is the clear
intention of the Parliament.
27
8.9 Learned ASG drew our attention to paragraph 97 of her
written submissions, which shows that the process of surrogacy
consists of two stages: Stage A and Stage B. The same is extracted
as under:
“97. The process of surrogacy broadly entails the following
stages:
8.10 Learned ASG submitted that the transitional period of ten
months under Section 53 protects only Stage B of the surrogacy
process, which involves the surrogate mother. The attempt of the
petitioners is to move the line upwards, to cover individuals
28
(intending couple) at various points in Stage A, which is against the
intention of the Parliament.
8.11 It was further submitted that even if cryopreservation was
done prior to the Act, it does not mean that surrogacy can then
proceed de hors the provisions of the Act. Since surrogacy is now a
statutory right, there can be no right to avail surrogacy in a manner
beyond the scope of the Act.
8.12 It was also submitted that the Act was introduced after a
long deliberative process over years, in which the draft Bill was
made public. Two Parliamentary Committees also undertook public
consultations. Therefore, individuals affected by the Act, including
the petitioners and applicants herein, had the opportunity to
understand and react to the impact of the Act on them at the
relevant point in time. But today, they cannot plead that their
rights, as they prevailed prior to the enforcement of the Act, be
protected.
29
Issue for Consideration:
9. The issue that has arisen in these cases is that the appropriate
authority would not have the power to issue an eligibility certificate
to undertake a surrogacy procedure under Section 4 of the Act to
an intending couple if the female is above 50 years of age and the
male is above 55 years of age on the date of certification. The
common contention of learned senior counsel and learned counsel
for the petitioners as well as applicant is that they had commenced
the surrogacy procedures prior to the date of enforcement of the Act,
i.e., prior to 25.01.2022 and therefore, when they were in the midst
of such a procedure, the Act brought in an embargo in the form of
the aforementioned age-limit. As a result, they are barred from
continuing the surrogacy procedure post the enforcement of the Act,
although the same had been commenced much prior to the Act.
9.1 In this regard, our attention was drawn to the transitional
provision which only protects the surrogate mother undergoing a
surrogacy procedure for a period of ten months but not an intending
couple undertaking such a procedure. Therefore, there is a
challenge to the fixation of the maximum age under the Act. It was
30
contended that all intending couples who had commenced
surrogacy procedures prior to the enforcement of the Act may be
permitted to continue with the same. It was submitted that the age
of the intending couple would have no bearing on the procedure of
surrogacy. That, if there is no bar on bearing a child at that age by
a natural process, or for adopting an infant under the personal law,
then such an embargo regarding age should not be applied in the
case of an intending couple having a child by a surrogacy
procedure. That couples resort to surrogacy as a last resort and if
by the time of seeking certification under Section 4 of the Act, they
have crossed the age bar, they would be deprived of parenthood. It
was submitted that in the case of these petitioners and applicants,
the surrogacy procedure had commenced long before the coming
into force of the Act and the parties had also frozen the embryos
and were at a crucial stage of the process when the age-bar under
the Act led to a frustration of the procedure itself. Therefore, it was
contended that where intending couples had commenced surrogacy
procedures prior to the enforcement of the Act, they may be
permitted to complete the same, irrespective of their age on the date
31
of certification, if they otherwise comply with the requirements
under the Act.
9.2 Per contra, learned counsel for the respondent-Union of India
contended that with effect from the enforcement of the Act, no male
or female or intending couple who have crossed the age bar can
avail any surrogacy procedure leading to the birth of a child through
surrogacy. Hence, she urged that the age limit on the date of
certification, that determines eligibility for the purpose of availing
surrogacy, must be read accordingly.
10. Section 4(ii)(a) of the Act mandates that no surrogacy
procedures shall be conducted unless the intending couple “has a
medical indication necessitating gestational surrogacy”. Further,
Section 4(iii)(a)(I) provides that a ‘certificate of essentiality’ (issued
by a District Medical Board) certifying a medical indication in favour
of either or both members of the intending couple, is a pre-requisite
for undertaking surrogacy procedures. The phrase “medical
indication necessitating gestational surrogacy” is in turn defined
32
under Rule 14 of the Surrogacy (Regulation) Rules, 2022, (‘Rules’,
for short) which is reproduced below:
“14. Medical indications necessitating gestational
surrogacy.—A woman may opt for surrogacy if;—
(a) she has no uterus or missing uterus or abnormal
uterus (like hypoplastic uterus or intrauterine adhesions
or thin endometrium or small unicornuate uterus, T-
shaped uterus) or if the uterus is surgically removed due
to any medical conditions such as gynaecological cancer;
(b) intended parent or woman who has repeatedly failed to
conceive after multiple In vitro fertilization or
Intracytoplasmic sperm injection attempts. (Recurrent
implantation failure);
(c) multiple pregnancy losses resulting from an
unexplained medical reason. unexplained graft rejection
due to exaggerated immune response;
(d) any illness that makes it impossible for woman to carry
a pregnancy to viability or pregnancy that is life
threatening.”
10.1 In the cases of intending couple Nos.1, 2 and 3, it is not
denied or contested that they qualify for surrogacy procedures
based on the above reasons. Intending couple No.1 submitted that
the petitioner-wife has suffered from excessive bleeding during prior
pregnancies; intending couple No.2 submitted that they have
suffered multiple failed attempts at embryo transfer between 2012
33
and 2018; and intending couple No.3 submitted that the applicant-
wife was unable to carry a child naturally due to fibroids in her
uterus, and was advised to opt for surrogacy due to hypertension.
The respondent-Union of India has not contested the fact that prima
facie, all three intending couples may qualify as necessitating
gestational surrogacy under the above Rule. However, this is
subject to medical opinion in light of Rule 14 of the Rules.
10.2 Therefore, the question that falls for our adjudication is
whether the age-restrictions under Section 4(iii)(c)(I) should be
applied to intending couple Nos.1 to 3, all of whom had commenced
the surrogacy process, to the extent of having their embryos frozen,
before the enforcement of the Act.
Concept of Surrogacy:
11. The first attempt at surrogacy regulation in India was in the
form of the “National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India”, drafted by the Indian Council of
Medical Research (‘ICMR’), and approved by the Ministry of Health
and Family Welfare, Government of India in the year 2005. It
34
defined ‘surrogacy’ as an “arrangement in which a woman agrees to
carry a pregnancy that is genetically unrelated to her and her
husband, with the intention to carry it to term and hand over the child
to the genetic parents for whom she is acting as a surrogate”. It also
prescribed a list of ‘general considerations’ for surrogacy
procedures, for instance, HIV tests for prospective surrogate
mothers, mandatory adoption of the child by the genetic parents
and limits on how many times a woman can act as a surrogate.
Importantly however, the aforesaid Guidelines did not forbid the
practice of ‘commercial surrogacy’. This was also the case in the
subsequent Draft ART Bill, 2008, which allowed the surrogate
mother to work out “the financial terms and conditions of the
surrogacy with the couple”.
11.1 ‘Surrogacy’ as a concept was elaborated upon in great detail
by this Court in Baby Manji Yamada vs. Union of India, (2008)
13 SCC 518, wherein it was observed as follows:
“8. Surrogacy is a well-known method of reproduction
whereby a woman agrees to become pregnant for the
purpose of gestating and giving birth to a child she will not
raise but hand over to a contracted party. She may be the
child's genetic mother (the more traditional form for
35
surrogacy) or she may be, as a gestational carrier, carry
the pregnancy to delivery after having been implanted with
an embryo. In some cases surrogacy is the only available
option for parents who wish to have a child that is
biologically related to them.
9. The word “surrogate”, from Latin “subrogare”, means
“appointed to act in the place of”. The intended parent(s)
is the individual or couple who intends to rear the child
after its birth.
10. In traditional surrogacy (also known as
the Straight method) the surrogate is pregnant with her
own biological child, but this child was conceived with the
intention of relinquishing the child to be raised by others;
by the biological father and possibly his spouse or partner,
either male or female. The child may be conceived via home
artificial insemination using fresh or frozen sperm or
impregnated via IUI (intrauterine insemination), or ICI
(intracervical insemination) which is performed at a
fertility clinic.
11. In gestational surrogacy (also known as
the Host method) the surrogate becomes pregnant via
embryo transfer with a child of which she is not the
biological mother. She may have made an arrangement to
relinquish it to the biological mother or father to raise, or
to a parent who is themselves unrelated to the child (e.g.
because the child was conceived using egg donation, germ
donation or is the result of a donated embryo). The
surrogate mother may be called the gestational carrier.
12. Altruistic surrogacy is a situation where the surrogate
receives no financial reward for her pregnancy or the
relinquishment of the child (although usually all expenses
related to the pregnancy and birth are paid by the intended
parents such as medical expenses, maternity clothing, and
other related expenses).
36
13. Commercial surrogacy is a form of surrogacy in which
a gestational carrier is paid to carry a child to maturity in
her womb and is usually resorted to by well-off infertile
couples who can afford the cost involved or people who
save and borrow in order to complete their dream of being
parents. This medical procedure is legal in several
countries including in India where due to excellent medical
infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry
proportions. Commercial surrogacy is sometimes referred
to by the emotionally charged and potentially offensive
terms “wombs for rent”, “outsourced pregnancies” or “baby
farms”.
14. Intended parents may arrange a surrogate pregnancy
because a woman who intends to parent is infertile in such
a way that she cannot carry a pregnancy to term.
Examples include a woman who has had a hysterectomy,
has a uterine malformation, has had recurrent pregnancy
loss or has a health condition that makes it dangerous for
her to be pregnant. A female intending parent may also be
fertile and healthy, but unwilling to undergo pregnancy.
15. Alternatively, the intended parent may be a single male
or a male homosexual couple.
16. Surrogates may be relatives, friends, or previous
strangers. Many surrogate arrangements are made
through agencies that help match up intended parents
with women who want to be surrogates for a fee. The
agencies often help manage the complex medical and legal
aspects involved. Surrogacy arrangements can also be
made independently. In compensated surrogacies the
amount a surrogate receives varies widely from almost
nothing above expenses to over $30,000. Careful screening
is needed to assure their health as the gestational carrier
incurs potential obstetrical risks.”
37
11.2 The first move towards the prohibition of commercial
surrogacy came with the 228th Report of the Law Commission of
India in 2009, which flagged the problem of India becoming a
“reproductive tourism destination” (i.e., foreign couples come to
India for cost-effective surrogacy procedures) and wombs being “on
rent”. It concluded with the following recommendations, inter alia:
“1. Surrogacy arrangement will continue to be governed by
contract amongst parties, which will contain all the terms
requiring consent of surrogate mother to bear child,
agreement of her husband and other family members for
the same, medical procedures of artificial insemination,
reimbursement of all reasonable expenses for carrying
child to full term, willingness to hand over the child born
to the commissioning parent(s), etc. But such an
arrangement should not be for commercial purposes.
2. A surrogacy arrangement should provide for financial
support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the
child, or divorce between the intended parents and
subsequent willingness of none to take delivery of the
child.
3. A surrogacy contract should necessarily take care of life
insurance cover for surrogate mother.
4. One of the intended parents should be a donor as well,
because the bond of love and affection with a child
primarily emanates from biological relationship. Also, the
chances of various kinds of child-abuse, which have been
noticed in cases of adoptions, will be reduced. In case the
intended parent is single, he or she should be a donor to
be able to have a surrogate child. Otherwise, adoption is
38
the way to have a child which is resorted to if biological
(natural) parents and adoptive parents are different.
5. Legislation itself should recognize a surrogate child to
be the legitimate child of the commissioning parent(s)
without there being any need for adoption or even
declaration of guardian.
6. The birth certificate of the surrogate child should
contain the name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother
should be protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical
Termination of Pregnancy Act 1971 only.”
11.3 The question of age restrictions on the intending couple did
not arise in these prior frameworks and recommendations. For
instance, the ART (Regulation) Bill, 2008 imposed an age bracket of
21-45 years within which one could become a surrogate mother.
However, there were no similar restrictions on the
commissioning/intending couple. It is only with the advent of the
Act in the year 2022 that the age-restrictions in Section 4(iii)(c)(I)
have been created. Prior to the Act therefore, in the absence of a
legal bar, or for that matter any binding surrogacy regulations,
39
intending couples were free to bear children through surrogacy
procedures irrespective of their age.
Surrogacy as an Exercise of Reproductive Autonomy:
12. In recent jurisprudence, the Supreme Court has often
recognised that ‘reproductive autonomy’ is part of the constellation
of rights afforded to all people under Article 21 of the Constitution.
In 2009, a three-judge bench of this Court in Suchita Srivastava
vs. Chandigarh Admn., (2009) 9 SCC 1 (“Suchita Srivastava”)
observed as follows:
“22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of `personal
liberty' as understood under Article 21 of the Constitution
of India. It is important to recognise that reproductive
choices can be exercised to procreate as well as to abstain
from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity
should be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive
choices such as a woman's right to refuse participation in
sexual activity or alternatively the insistence on use of
contraceptive methods.”
(underlining by us)
12.1 In K.S. Puttaswamy (Privacy-9J.) vs. Union of India,
(2017) 10 SCC 1, which a recognised a right to privacy within the
40
contours of Article 21, Dr. D.Y. Chandrachud, J. (as he then was),
observed as follows:
“248. Privacy has distinct connotations including (i)
spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, “The Four Parts
of Privacy in India”, Economic & Political Weekly (2015),
Vol. 50 Issue 22, at p. 32.] Spatial control denotes the
creation of private spaces. Decisional autonomy
comprehends intimate personal choices such as those
governing reproduction as well as choices expressed in
public such as faith or modes of dress.”
(underlining by us)
12.2 Indeed, the freedom to make procreative choices as a facet
of a right to privacy was recognised even as far back as this Court’s
judgement in R. Rajagopal vs. State of T.N., (1994) 6 SCC 632,
in which it was observed that “any right to privacy must encompass
and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child-rearing”.
12.3 It would also be apt to refer to the more recent judgement
of a three-judge bench of this Court in X2 vs. State, authored by
Dr. D.Y. Chandrachud, CJ., where it was observed as under:
41
“101. The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also
includes the constellation of freedoms and entitlements
that enable a woman to decide freely on all matters relating
to her sexual and reproductive health. Reproductive rights
include the right to access education and information
about contraception and sexual health, the right to decide
whether and what type of contraceptives to use, the right
to choose whether and when to have children, the right to
choose the number of children, the right to access safe and
legal abortions, and the right to reproductive healthcare.
Women must also have the autonomy to make decisions
concerning these rights, free from coercion or violence.”
(underlining by us)
12.4 As recently as 2024, this Court in A vs. State of
Maharashtra, (2024) 6 SCC 327 held that “(the right to choose
and) reproductive freedom is a fundamental right under Article 21
of the Constitution”.
12.5 The 228th Report of the Law Commission of India (supra),
opined that “if reproductive right gets constitutional protection,
surrogacy which allows an infertile couple to exercise that right also
gets the same constitutional protection”. Indeed, before the
enforcement of the Act in the year 2022, we observe that this was
the case. The choice of a couple, medically incapable of
conceiving/bearing children naturally, to pursue surrogacy
42
procedures to procreate in the absence of binding regulations was
but an exercise of their decisional and reproductive autonomy. The
Act has the object of regulating surrogacy so as to protect it from
commercial exploitation. The object of the Act is not to frustrate the
rights of intending couples who are otherwise eligible to undertake
surrogacy procedures.
12.6 Therefore, at the time that intending couple Nos.1 to 3
herein generated and froze their embryos, they had qualified for
surrogacy under the prevailing law. Thus, they came to possess a
right to surrogacy as a part of reproductive autonomy and
parenthood. Before 25.01.2022, we find that there were no binding
laws, certifications, etc. regarding age restrictions on intending
couples wishing to avail surrogacy (such as intending couple Nos.1
to 3 herein). Therefore, for couples above the (statutory) age limits
under the Act, the right to access surrogacy or their entitlement to
surrogacy was not conditional on their age and was freely available
to couples under the prevailing law.
43
12.7 To reiterate, we are concerned solely with the question of
age-restrictions in these three cases. The short point is, that on the
issue of age alone, the right to surrogacy as a facet of autonomy
under Article 21 was unrestricted prior to the enforcement of the
Act under consideration. In other words, the right to decide that
despite one’s age, one wishes to have children through surrogacy,
was afforded to intending couples under Article 21 prior to the
enforcement of the Act. Now with the enforcement of the Act, can
that right be stultified?
Retrospective Application of Age-Restrictions:
13. In the case of intending couple Nos.1 to 3, they had exercised
this decisional autonomy and commenced the process of surrogacy,
to the extent of freezing their embryos in preparation for transfer to
the womb of the surrogate mother. They were at the last step of
Stage A as per the diagram (supra).
13.1 Therefore, the real issue is whether a statutory regulation
may apply retrospectively and frustrate a right which had and has
the imprimatur of the Constitution under Article 21 and had been
44
exercised by intending couples who had commenced the process of
surrogacy prior to the enforcement of the Act.
13.2 Ms. Aishwarya Bhati, learned ASG argued that the age-
restrictions under the Act should apply retrospectively to such
couples also since the State has an interest in ensuring that
children born to such parents receive adequate parenting. Put
simply, the submission was that intending couples, one or both of
whom are above the prescribed age-limit(s) under the Act, will not
be able to effectively parent their children.
13.3 We are unable to accept this submission. In Suchita
Srivastava, this Court observed in the case of a pregnant rape
victim that also suffered from mental retardation, that “(the victim’s)
reproductive choice should be respected in spite of other factors
such as the lack of understanding of the sexual act as well as
apprehensions about her capacity to carry the pregnancy to its full
term and the assumption of maternal responsibilities thereafter”.
13.4 In the present case, the parenting capabilities of the couple
are being used to assail their eligibility to have children through
45
surrogacy. The above observations in Suchita Srivastava would
apply squarely to such a case as well. It is not for the State to
question the couple’s ability to parent children after they had begun
the exercise of surrogacy when there were no restrictions on them
to do so.
13.5 In this regard, we consider it useful to note that the law does
not impose any age restrictions on couples who wish to conceive
and bear children naturally. In this regard, prior to the enforcement
of the Act, intending couple Nos.1 to 3 were on the same footing as
couples who wished to conceive naturally. But, the stark distinction
is that owing to medical reasons/disadvantages, they could not
have children naturally. Having exercised this parity in freedom by
commencing the surrogacy process, can it be said that they can now
be denied the continued exercise of this freedom only because of the
age bar under the Act? We are not inclined to believe so.
13.6 Learned ASG for the respondent-Union of India also argued
that the age-limits should be applied retrospectively due to
concerns over the declining quality of gametes with age and the
46
potential impact of the same on the children born through
surrogacy. However, we are also not inclined to accept this
submission for the same reasons as above. Whatever be the
restrictions post the enforcement of the Act, the fact remains that
prior to 25.01.2022, intending couple Nos.1 to 3 were not restricted
by their age and had duly commenced the surrogacy process using
their freedom. On the basis of concerns over gamete quality, the law
does not fetter couples who wish to bear children naturally. Prior to
the enforcement of the Act, the law did not fetter intending couple
Nos.1 to 3 on this ground either. Moreover, there is no age bar for
couples who wish to adopt children under the provisions of the
Hindu Adoptions and Maintenance Act, 1956, which personal law
applies to the intending couples herein.
13.7 We must clarify that we are not questioning the wisdom of
the Parliament in its prescription of age-limits under the Act, or
passing a judgement on its validity. Rather, the cases before us are
limited to couples who commenced the surrogacy process before the
enforcement of the Act, and we limit our observations to the same.
Therefore, the question that arises is, whether, the respondent-
47
Union of India has been able to demonstrate compelling reasons as
to why the age-limits must apply retrospectively and why the
freedom of intending couple Nos.1 to 3 to pursue surrogacy, once
exercised by them, should now be taken away. Concerns over
parenting and gamete quality, while possibly being legitimate
concerns for lawmakers (though we do not express any opinion on
the same), are not compelling reasons for retrospective application
of the Act, especially since the State allows some categories of
couples (those who wish to conceive naturally) to procreate despite
these concerns or for that matter to opt for adoption as per personal
law.
13.8 In this regard, we find force in the submissions of learned
senior counsel and counsel for the petitioners that the right to
surrogacy vested in intending couple Nos.1 to 3 prior to the
enforcement of the Act, it was a constitutionally recognized right
which continues to be so recognized but subject to reasonable
restrictions with a view to obviate exploitation of surrogate mothers
through a process of commercial surrogacy. Therefore, such a
constitutional right cannot be taken away retrospectively from them
48
on account of their age, without an express intention to do so under
the Act. The judgements of this Court in S.L. Srinivasa Jute Twine
Mills and Gopinathan Nair squarely apply in the cases before us.
In the first of the aforesaid cases, it was observed in paragraph 18
as under:
“18. It is a cardinal principle of construction that every
statute is prima facie prospective unless it is expressly or
by necessary implication made to have retrospective
operation. (See Keshavan Madhava Menon v. State of
Bombay [1951 SCC 16 : 1951 SCR 228 : AIR 1951 SC 128:
1951 Cri LJ 860] .) But the rule in general is applicable
where the object of the statute is to affect vested rights or
to impose new burdens or to impair existing obligations.
Unless there are words in the statute sufficient to show the
intention of the legislature to affect existing rights, it is
deemed to be prospective only nova constitutio futuris
formam imponere debet, non praeteritis. In the words of
Lord Blanesburgh,
“provisions which touch a right in existence at the
passing of the statute are not to be applied
retrospectively in the absence of express
enactment or necessary intendment” (see Delhi
Cloth & General Mills Co. Ltd. v. CIT [AIR 1927 PC
242 : 54 IA 421] , AIR p. 244).
“Every statute, it has been said”, observed Lopes, L.J.,
“which takes away or impairs vested rights
acquired under existing laws, or creates a new
obligation or imposes a new duty, or attaches a
new disability in respect of transactions already
past, must be presumed to be intended not to have
a retrospective effect.” (See Amireddi Rajagopala
49
Rao v. Amireddi Sitharamamma [(1965) 3 SCR
122 : AIR 1965 SC 1970] .) [Ed. : But see fn. 27,
p. 402 of Principles of Statutory Interpretation, by
Justice G.P. Singh, 8th Edn. (Reprint) 2002.]
As a logical corollary of the general rule, that retrospective
operation is not taken to be intended unless that intention
is manifested by express words or necessary implication,
there is a subordinate rule to the effect that a statute or a
section in it is not to be construed so as to have larger
retrospective operation than its language renders
necessary. (See Reid v. Reid [(1886) 31 Ch D 402 : 54 LT
100 (CA)] .) In other words, close attention must be paid to
the language of the statutory provision for determining the
scope of the retrospectivity intended by Parliament. (See
Union of India v. Raghubir Singh [(1989) 2 SCC 754 : AIR
1989 SC 1933] .) The above position has been highlighted
in Principles of Statutory Interpretation by Justice G.P.
Singh. (10th Edn., 2006 at pp. 474 and 475.)”
13.9 It is important to note in this regard, that the relevant age-
limits under the Act are imposed on the intending couples in the
present cases. Therefore, they are in the nature of fetters on the
freedom of choice and the realm of decision-making that, in the
absence of regulation, would be the sole prerogative of intending
couples. For intending couples who undertook surrogacy
procedures prior to the Act, age-related considerations were entirely
their prerogative and as explained earlier, an exercise of their rights
under Article 21 of the Constitution. Therefore, we have no
50
hesitation in observing that the right to make autonomous
decisions regarding the age at which one wished to pursue
surrogacy, had vested in intending couple Nos.1 to 3. Hence, since
there is no manifest intention in the provisions of the Act to apply
the age-limits retrospectively, we are of the view that the same is
not permissible. Further, the intending couples in the present cases
could have opted for adoption of children under personal law in the
absence of an age restriction. In such a situation, the argument
regarding quality parenting would be futile and of no consequence.
13.10 In this regard, it is helpful to refer to the Statement of
Objects and Reasons in the Surrogacy (Regulation) Bill, 2019,
relevant parts of which are reproduced below:
“India has emerged as a surrogacy hub for couples from
different countries for past few years. There have been
reported incidents of unethical practices, exploitation of
surrogate mothers, abandonment of children born out of
surrogacy and import of human embryos and gametes.
Widespread condemnation of commercial surrogacy in
India has been regularly reflected in different print and
electronic media for last few years. The Law Commission
of India has, in its 228th Report, also recommended for
prohibition of commercial surrogacy by enacting a suitable
legislation. Due to lack of legislation to regulate surrogacy,
the practice of surrogacy has been misused by the
surrogacy clinics, which leads to rampant of commercial
51
surrogacy and unethical practices in the said area of
surrogacy.
2. In the light of above, it had become necessary to enact
a legislation to regulate surrogacy services in the country,
to prohibit the potential exploitation of surrogate mothers
and to protect the rights of children born through
surrogacy.”
(underlining by us)
13.11 The common thread that runs through the emphasised
portions above is that they express the need for surrogacy
regulation in terms of impacts on people who are different from the
intending couple – exploitation of the surrogate mother and the
rights (pertinently the protection against abandonment) of children
born through surrogacy. These considerations have manifested in
various provisions of the Act, such as the prohibition of commercial
surrogacy [Section 4(ii)(c)]; the prohibition on surrogacy clinics,
inter alia, inducing a woman to act as a surrogate mother [Section
3(v)(b)]; the prohibition on abandonment of the child (Section 7); the
right of a child to be deemed a ‘biological child’ of the intending
couple (Section 8), etc.
52
13.12 Thus, prior to the enforcement of the Act, the right to
pursue surrogacy despite one’s age, did not impinge on any of the
above considerations and was solely in the decision-making domain
of the intending couple. It was a personal decision, with personal
consequences. Although the respondent-Union of India has argued
that the age-limits are directly related to the welfare of the children,
as explained above, we are unable to accept this submission in view
of the unlimited freedom afforded to couples who wish to conceive
children naturally, irrespective of their age. This was also the status
occupied by intending couple Nos.1 to 3 before the enforcement of
the Act. Their decision to have children through surrogacy despite
their age was a personal one and did not involve a third person (the
surrogate mother) or the rights of the children to be considered
biological children.
13.13 Therefore, we are of the view that the right to decide to
bear children through surrogacy despite their ages, is one that can
legitimately be considered to have vested in intending couple Nos.1
to 3 herein prior to the coming into force of the Act, following their
decision to undertake the surrogacy procedure. At this point, we
53
must once again reiterate that our decision is restricted to intending
couple Nos.1 to 3, who have been prevented from pursuing
surrogacy solely due to their age, despite having commenced the
surrogacy procedure before the enforcement of the Act. We make it
clear that have not considered the vires of the age fixation under
Section 4 for intending couples in this order.
‘Commencement’ of the Surrogacy Procedure:
14. The next question that arises is the proper meaning of the
term ‘commencement’ of the surrogacy procedure. When can it be
said that couples have ‘commenced’ the process of surrogacy before
the enforcement of the Act, and hence may be allowed to continue
despite the subsequent age-limits? In this regard, we find it helpful
to refer to the diagram submitted by the respondent-Union of India,
referred to in an earlier paragraph of this order.
14.1 We can see that the last step in Stage A is the ‘freezing of
embryos’, which marks the last step before the commencement of
Stage B, which involves the surrogate mother inasmuch as the
embryos are transferred to the uterus of the surrogate mother by
54
implantation. At this point, the intending couple has already
completed the process of extracting gametes which included both
the sperm and oocyte; fertilising them to form zygotes, and freezing
the resulting ‘embryos’, which means a developing or developed
organism after fertilization till the end of fifty-six days. Section 2(c)
defines “fertilisation” to mean the penetration of the ovum by the
spermatozoan and fusion of genetic materials resulting in the
development of a zygote. The word ‘zygote’ is defined in Section 2(zh)
to mean the fertilised oocyte prior to the first cell division. Further,
from the fifty-seventh day after fertilization onwards, the organism
is called a ‘foetus’ which is defined to mean a human organism
during the period of its development beginning on the fifty-seventh
day following fertilisation or creation (excluding any time in which
its development has been suspended) and ending at birth.
This is the stage at which intending couple Nos.1 to 3 found
themselves before the commencement of the Act. They were thus
ready to transfer the embryo to the womb of the surrogate mother.
14.2 Now, if the transfer to the womb had been effected before
the commencement of the Act, then Section 53 would have operated
55
as a ‘gestational’ (transitional) period to the benefit of the surrogate
mother in which the age restrictions on the intending couple would
not have applied at all. Therefore, even if a surrogate child is born
within ten months after the Act is enforced then the age bar would
not apply insofar as the intending couples are concerned. Hence,
the submission of learned ASG is that the age-limits can be
transgressed only when the surrogate mother has been introduced
into the surrogacy procedure. However, we do not find this to be a
valid argument. This would mean that even if the intending couple
had crossed the age restriction prior to the enforcement of the Act,
and the transitional provision applied, the concerns of them being
too old to have children and concerns regarding the quality of their
parenting would vanish and be disregarded. Such a position cannot
be accepted as the same in effect frustrates the right of intending
couples attempting to have a surrogate child, which is a
constitutional right regulated by statute. Hence, there is a need to
strike a balance between the provision regarding the age restriction,
the transitional provision (Section 53 of the Act) and the rights of
the intending couples to have a surrogate child when they had
56
commenced the surrogacy procedure prior to the commencement of
the Act and were in the midst of the said procedure when the Act
has placed age restrictions on them. In the instant case, the
intending couples were a step away from involving the surrogate
mother in the process.
14.3 Therefore, we deem it appropriate to observe that the
‘commencement’ of the surrogacy process for the limited purpose of
determining when the age-limits under the Act must be applied
prospectively and not retrospectively takes place after the intending
couple has completed the extraction and fertilisation of gametes and
has frozen the embryo with an intention to and for the purposes of,
transfer to the womb of the surrogate mother. There is no additional
step to be undertaken by the couple themselves. All subsequent
steps would involve only the surrogate mother. There is nothing else
for the couple to do by themselves, that would strengthen the
manifestation of their intention to pursue surrogacy. Therefore, the
freezing of embryos for the purpose of surrogacy is a stage at which
one can say that the intending couple has taken multiple bona fide
steps and had manifested their intention to pursue surrogacy and
57
all that remained was involvement of the surrogate mother herself
in Stage B of the diagram, which could not be gone through due to
various circumstances including the intervention of Covid-19
Pandemic in these cases.
14.4 We also wish to refer in an analogous way to the relevant
portion of an earlier order of this Court (B.V. Nagarathna and Ujjal
Bhuyan, JJ.) dated 18.10.2023 in the main Writ Petition, i.e., Arun
Muthuvel vs. Union of India and Ors., WP (Civil) No.756 of
2022. This was in the context of an amendment made to Form 2
(disallowing the use of donor gametes) and the other provisions of
the Surrogacy Act and Rules, which can be extracted as under:
“Secondly, the petitioner herein had commenced the
procedure for achieving parenthood through surrogacy
much prior to the amendment which has come into effect
from 14.03.2023. Therefore, the amendment which is now
coming in the way of the intending couple and preventing
them from achieving parenthood through surrogacy, we
find, is prima facie contrary to what is intended under the
main provisions of the Surrogacy Act both in the form as
well as in substance.”
However, the point on ‘commencement of surrogacy prior to
the amendment’ is mentioned only briefly in the order, while
58
considering the question regarding the dissonance between the
impugned amendment to Form 2, and Rule 14(a) of the Surrogacy
Rules.
Operation of a statute:
15. The controversy in this case really revolves around the
concept of operation of statutes under principles of statutory
interpretation. This is because the Act has been enforced with effect
from 25.01.2022 mandating certain requirements to be fulfilled by
the intending couples, one of which is the requirement of age. As
already noted, the petitioners and applicant herein contend that
they have commenced the surrogacy procedure prior to the
commencement of the Act and therefore, the same cannot now be
frustrated on the basis of age restrictions imposed under Section
4(iii)(c)(I) of the Act. Hence, the point for consideration is, whether,
the operation of the Act is retrospective in nature so as to
encompass intending couple Nos.1, 2 and 3, or whether, the
mandatory requirements under the Act would only apply
prospectively from the date of the enforcement of the Act, i.e., when
the surrogacy procedure is commenced on or after 25.01.2022.
59
15.1 We observe that a piece of Central Legislation comes into
operation on the day it receives Presidential assent and is generally
construed as coming into operation immediately on the expiration
of the day preceding its commencement. Thus, in the instant case,
the Act has come into operation on the midnight between
24.01.2022 and 25.01.2022. Further, the Parliament as well as the
State Legislatures have the plenary powers to make laws both
prospectively as well as retrospectively. By retrospective legislation,
the Parliament or a Legislature may make a law which is operative
for a limited period prior to the date of its coming into force. This
power is generally used for validating prior executive and legislative
acts by retrospectively curing the defects which led to the invalidity
and thus, making ineffective judgments of competent courts
declaring the invalidity.
15.2 Another cardinal principle of construction is that every
statute is generally prospective unless it is made retrospective either
expressly or by necessary implication vide State of Bombay vs.
Vishnu Ramchandra, AIR 1961 SC 307 (“Vishnu
Ramchandra”); Zile Singh vs. State of Haryana, AIR 2004 SC
60
5100 (“Zile Singh”). Thus, a new law ought to regulate what is to
follow and not the past. This is a presumption of prospectivity which
is expressed in the legal maxim, nova constitutio futuris formam
imponere debet non praeteritis. Thus, the presumption operates
unless the contrary is expressed in the statute itself or is otherwise
discernible by necessary implication vide Monnet Ispat & Energy
Ltd. vs. Union of India, (2012) 11 SCC 1. In other words, a right
in existence at the passing of the statute cannot be impacted by its
provisions retrospectively in the absence of an express enactment
or necessary intendment. Thus, any statute which takes away or
impairs vested rights acquired under existing laws or, inter alia,
attaches a new disability in respect of transaction already passed,
must be presumed to be intended not to have a retrospective effect.
Therefore, a statute cannot be construed to have a retrospective
operation than what the language desires it to be necessary.
Further, a statute need not have an express provision to make it
retrospective as by necessary implication a statute can have a
retrospective operation depending on the use of legal fiction or by
necessary implication.
61
15.3 Another principle flowing from presumption against
retrospectivity is that “one does not expect rights conferred by the
statute to be destroyed by events which took place before it was
passed”.
15.4 In contrast to statutes dealing with substantive rights,
statutes dealing merely with matters of procedure are presumed to
be retrospective unless such a construction is textually
inadmissible vide Hitendra Vishnu Thakur vs. State of
Maharashtra, AIR 1994 SC 2623 (“Hitendra Vishnu Thakur”).
It has been said that law relating to forum and limitation is
procedural in nature whereas law relating to right of action and
right of appeal even though remedial is substantive in nature; that
procedural statute should not generally speaking be applied
retrospectively where the result would be to create new disabilities
or obligations or to impose new duties in respect of transactions
already accomplished; that statute which not only changes the
procedure but also creates new rights and obligations shall be
construed to be prospective unless otherwise provided either
62
expressly or by necessary implication vide Hitendra Vishnu
Thakur.
15.5 The classification of a statute as either substantive or
procedural does not necessarily determine whether it may have a
retrospective operation. For example, a statute of limitation is
generally regarded as procedural but if its application to a past
cause of action has the effect of reviving or extinguishing a right of
suit, such an operation cannot be said to be merely procedural. For
these reasons the rule against retrospectivity has also been avoiding
the classification of statutes into substantive and procedural and
avoiding use of words like existing or vested. One such formulation
by Dixon, C.J. is in Maxwell vs. Murphy, (1957) 96 CLR 261, page
No. 267 which is as follows:
“The general rule of the common law is that a statute
changing the law ought not, unless the intention appears
with reasonable certainty, to be understood as applying to
facts or events that have already occurred in such a way
as to confer or impose or otherwise affect rights or
liabilities which the law had defined by reference to the
past events. But, given rights and liabilities fixed by
reference to the past facts, matters or events, the law
appointing or regulating the manner in which they are to
be enforced or their enjoyment is to be secured by judicial
63
remedy is not within the application of such a
presumption.”
15.6 Another more simple statement of the rule was made in
Secretary of State for Social Security vs. Tunnicliff, (1991) 2
All ER 712 by Staughton LJ in the following words:
“The true principle is that Parliament is presumed not to
have intended to alter the law applicable to past events and
transactions in a manner which is unfair to those
concerned in them unless a contrary intention appears. It
is not simply a question of classifying an enactment as
retrospective or not retrospective. Rather it may well be a
matter of degree - the greater the unfairness, the more it
is to be expected that Parliament will make it clear if that
is intended.”
The above statement was approved by the House of Lords in
L’office Cherifien des Phosphates vs. Yamashita Shinnihon
Steamship Co. Ltd., (1994) 1 All ER 20. It was observed that the
question of fairness will have to be answered in respect of a
particular statute by taking into account various factors, viz., value
of the rights which the statute affects; extent to which that value is
diminished or extinguished by the suggested retrospective effect of
the statute; unfairness of adversely affecting the rights; clarity of
64
the language used by Parliament and the circumstances in which
the legislation was created.
15.7 All these factors must be weighed together to provide a direct
answer to the question whether the consequences of reading the
statute with the suggested degree of retrospectivity is so unfair that
the words used by Parliament could not have been intended to mean
what they might appear to say. (Source: G.P. Singh’s Principles
of Statutory Interpretation, 15th Edition)
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
65
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 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.
66
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) 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.
67
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 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 -
(i) commenced the surrogacy procedure prior to the
commencement of the Act i.e., 25.01.2022; and
(ii) were at the stage of creation of embryos and freezing after
extraction of gametes (Stage A of the diagram); and
(iii) on the threshold of transfer of embryos to the uterus of the
surrogate mother (Stage B of the diagram)
68
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.
17. In the result, we hold that Section 4(iii)(c)(I) does not have
retrospective operation and therefore, would not apply to the
petitioners and applicants who are the intending couples. We
reiterate that we have not considered the validity of the age
restrictions in this order but only the applicability of the same to
the petitioners and the applicants herein. The writ petitions and the
application are allowed in the aforesaid terms.
18. The petitioners and the applicants are exempted from
seeking certification on the qualifying age for the purpose of
continuing the surrogacy procedure provided they satisfy the other
conditions under the Act and the rules made thereunder.
19. If any other similarly placed intending couple has a grievance
with regard to age restrictions and commencement of the surrogacy
procedure prior to the enforcement of the Act as determined by us
69
above and wish to seek redressal in terms of this order, they may
approach the jurisdictional High Court instead of directly
approaching this Court.
……………………………………….J.
(B.V. NAGARATHNA)
……………………………………….J.
(K.V. VISWANATHAN)
NEW DELHI;
OCTOBER 09, 2025.
70
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 331 OF 2024
SMT VIJAYA KUMARI S & ANR. … Petitioner(s)
VERSUS
UNION OF INDIA … Respondent(s)
With
WRIT PETITION (CIVIL) NO. 809 OF 2024
With
I.A. No. 181569 of 2022
In
WRIT PETITION (CIVIL) NO. 756 OF 2022
JUDGMENT
K.V. Viswanathan, J.
1. I have had the advantage of reading the erudite opinion of my learned sister, B.V. Nagarathna J. While lending my concurrence to the view taken, considering the importance of the issue, the following additional reasons are penned. Page 1 of 19
2. The purpose of this judgment is to reinforce the aspect that by the fertilization of the embryo prior to 25.01.2022, certain rights inhered in the intending couple and the Surrogacy (Regulation) Act, 2021 (for short ‘the Act’) does not divest them of those rights.
LEGAL REGIME PRIOR TO 25.01.2022:-
3. Prior to the coming into force of the Act with effect from 25.01.2022, there was no age limit prescribed by any law or executive instruction for the intending couple to be eligible to resort to parenting through the procedure of surrogacy. The policy in place which dealt with this subject was the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India issued by Indian Council of Medical Research (ICMR) in 2005. The said guidelines not only dealt with regulation of ART clinics but also prescribed eligibility on aspects like sperm donor, oocyte donor and surrogate mother. While there was an upper age limit prescribed for donors, for a married couple intending to resort to the procedure of surrogacy, there was no age limit. Page 2 of 19
4. Clause 3.11.1 of the Guidelines prescribed that couples must give specific consent for storage and use of their embryos. It provided that the Human Fertilization & Embryology Act, UK (1990) allowed a 5-year storage period that India would also follow. Clause 3.11 and sub-clause 3.11.1 are extracted and set out herein below:-
“3.11 Preservation, Utilization & Destruction of Embryos 3.11.1 Couples must give specific consent to storage and use of their embryos. The Human Fertilization & Embryology Act, UK (1990), allows a 5-year storage period which India would also follow.”
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: -Page 3 of 19
RIGHT INCLUDES LIBERTY – SALMOND: -
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) Page 4 of 19 “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 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 Page 5 of 19 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 4(iii)(c)(I) is applicable to the intending couple herein, has arisen for consideration.
VESTED/CONTINGENT RIGHTS Vs. HOPE/SPES:-
8. 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. 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 Page 6 of 19 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. 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, Page 7 of 19 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 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 Page 8 of 19 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.
ANALOGY FROM PRECEDENTS – HOLDING “THINGS DONE TO INCLUDE LEGAL CONSEQUENCES FLOWING THEREFROM”:-
13. Though the case arose in a slightly different context, the ratio of this Court in Anushka Rengunthwar v. Union of India1, 1 (2023) 11 SCC 209 Page 9 of 19 has a great bearing for the case at hand. In Anushka Rengunthwar (supra), the petitioner students were Overseas Citizens of India (OCI). The initial policy was to consider OCI students on par with Indian citizens and they were entitled to compete for medical seats under the National Eligibility cum Entrance Test (NEET) like any other Indian Citizen. The policy was changed by the notification of 04.03.2021 and under the new policy the right to compete as Indian citizens for the seats was taken away and their eligibility was confined to competing for Non-Resident Indian seats or for supernumerary seats.
14. The argument of the petitioners and the respondent- Union as recorded by the Court was in the following terms:
CONTENTIONS “12. … …OCIs have taken up particular stream of education, passing 10th and 12th from schools in same state, meeting domicile/residence requirements, keeping in mind the rights which were available to them and hence their such acts would be saved as “things done” as per the words “except as respect things done or omitted to be done before such supersession” appearing in impugned Notification dated 4-3-2021. In Page 10 of 19 support of this submission, reliance was placed on Universal Imports Agency v. Chief Controller of Imports & Exports, 1960 SCC OnLine SC 42.
The OCIs were entitled to have “legitimate expectation” as enshrined in Navjyoti [Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477] that the said rights will continue to be available to them and not retrograded. That only a limited number of OCIs take the exam and out of them only a minuscule number clear the same and become eligible for admission. Hence no grave prejudice was being caused if the OCIs were allowed to seek admission to all seats based on merit and withdrawal of the same is therefore arbitrary and unreasonable.
13. The summary of the contention on behalf of the respondents as put forth by the learned Additional Solicitor General is as follows. The present case essentially raises a singular issue with regard to the classification made between Indian citizens and Overseas Citizens of India cardholders and the same being statutory, whether it is sustainable. It is contended that the classification made by the impugned notification is supported by statutory provisions which legitimises the State's interest and ensures that the limited number of seats in educational institutions are available to Indian citizens and not taken away by foreigners.”
15. Accepting the stand of the petitioners therein, this Court held as under:-
“49. The above-extracted details would indicate that in all the cases the petitioners have studied for more than six years in India and in most of the cases, Page 11 of 19 almost the entire educational career up to the stage of the qualifying examination for the pre-medical test has been undertaken in India. Apart from the specific cases noted herein, there are also petitioners/persons who had become citizens of a foreign country for compelling reasons, but hold benefit of OCI card. This would demonstrate that though in terms of law, the petitioners were “foreigners” due to the incident of birth in a foreign country or such other compelling circumstances, they continue to remain in India and to pursue their education and had fully justified the mid-path benefit given to them based on the OCI card. The manner in which they have conducted themselves by being students in India would indicate that in addition to having the umbilical connection with the country, they being aware of the right conferred through the Notifications dated 11-4-2005 and 5-1- 2009 had positioned themselves to further their professional career by making a choice of their profession and undertaking the preparation for the same. This was based on what was held out to that class of Overseas citizens. In fact, their entire educational career has been of the same standard, with the same “advantages” and “disadvantages” as has been the case with the students who are Indian citizens. In such situation, though in the strict term of the word “legitimate expectation”, it may not fall, a statutory right conferred had sown the seed of hope recognising the affiliation to this country, though they were not citizens in the strict sense.
52. However, what is necessary to be taken note is that the right which was bestowed through the Notifications dated 11-4-2005 and 5-1-2009 insofar as the educational parity, including in the matter of appearing for the All India pre-medical test or such other tests to make them eligible for admission has been completely altered.
Though the notification ex facie may not specify retrospective application, the effect of superseding the earlier notifications and the proviso introduced to Page 12 of 19 Clause 4(ii) would make the impugned Notification dated 4-3-2021 “retroactive” insofar as taking away the assured right based on which the petitioners and similarly placed persons have altered their position and have adjusted the life's trajectory with the hope of furthering their career in professional education.
59. Therefore, in that perspective, keeping in view the present position, the decision to supersede the earlier notifications and take away the right of OCI cardholders in whose favour such right had accrued and they have acted in a manner to take benefit of such right should not have been nullified without reference to the consequences. Having undertaken the entire educational career in India or at least the High School onwards, they cannot at this stage turn back to the country in which they were born to secure the professional education as they would not be in a position to compete with the students there either, keeping in view the study pattern and the monetary implication.
65. In the above circumstance, keeping in view, the object with which the 1955 Act was amended so as to provide the benefit to Overseas Citizen of India and in that context when rights were given to the OCI cardholders through the notifications issued from time to time, based on which the OCI cardholders had adopted to the same and had done things so as to position themselves for the future, the right which had accrued in such process could not have been taken away in the present manner, which would act as a “retroactive” notification. Therefore, though the notification ex facie does not specify retrospective operation, since it retroactively destroys the rights which were available, it is to be ensured that such of those beneficiaries of the right should not be affected by such notification. Though the rule against retrospective construction is not applicable to statutes merely because a part of the requisite for its action is drawn from a time antecedent to its Page 13 of 19 passing, in the instant case the rights were conferred under the notification and such rights are being affected by subsequent notification, which is detrimental and the same should be avoided to that extent and be allowed to operate without such retroactivity.
66. We note that it is not retrospective inasmuch as it does not affect the OCI cardholders who have participated in the selection process, have secured a seat and are either undergoing or completed the MBBS course or such other professional course. However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent. The goal post is shifted when the game is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.
67. Therefore in the factual background of the issue involved, to sum up, it will have to be held that though the impugned Notification dated 4-3-2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 4-3-2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State.” (Emphasis supplied) Page 14 of 19
16. Though said in the context of the saving clause “except as respect things done or omitted to be done before such supersession” in the 04.03.2021 notification, the principles flowing from Anushka Rengunthwar (supra) have a great bearing on the interpretation placed by us on the Act and particularly to Section 4(iii)(c)(I).
17. Anushka Rengunthwar (supra) was a case where the students had studied in India, and when they were all set to write the exam to qualify as doctors and to compete for the seats similar to Indian citizens, a new disability intervened. For those who commenced the process, the Court granted the relief by interpreting 04.03.2021 notification prospectively and recognizing certain rights to have inhered to the students in view of the legal regime in place before the notification of 04.03.2021.
18. Earlier a majority of this Court in a case with an identical saving clause as in Anushka Rengunthwar (supra) held as Page 15 of 19 under in M/s Universal Imports Agency v. The Chief Controller of Imports and Exports2:-
“16. What were the “things done” by the petitioners under the Pondicherry law? The petitioners in the course of their import trade, having obtained authorization for the foreign exchange through their bankers, entered into firm contracts with foreign dealers on C.I.F. terms. In some cases irrevocable Letters of Credit were opened and in others bank drafts were sent towards the contracts. Under the terms of the contracts the sellers had to ship the goods from various foreign ports and the buyers were to have physical delivery of the goods after they had crossed the customs barrier in India. Pursuant to the terms of the contracts, the sellers placed the goods on board the various ships, some before and others after the merger, and the goods arrived at Pondicherry port after its merger with India. The prices for the goods were paid in full to the foreign sellers and the goods were taken delivery of by the buyers after examining them on arrival. Before the merger if the Customs Authorities had imposed any restrictions not authorised by law, the affected parties could have enforced the free entry of the goods in a court of law. On the said facts a short question arises whether para 6 of the Order protects the petitioners. While learned counsel for the petitioners contends that “things done” take in not only things done but also their legal consequences, learned counsel for the State contends that, as the goods were not brought into India before the merger, it was not a thing done before the merger and, therefore, would be governed by the enactments specified in the Schedule. It is not necessary to consider in this case whether the concept of import not only takes in the factual bringing of goods into India, but also the entire process of import commencing from the date of the application for permission to import and ending with the crossing of the customs barrier in India. The words “things 2 (1961) 1 SCR 305 = 1960 SCC OnLine SC 42 Page 16 of 19 done” in para 6 must be reasonably interpreted and, if so interpreted, they can mean not only things done but also the legal consequences flowing therefrom. If the interpretation suggested by the learned counsel for the respondents be accepted, the saving clause would become unnecessary. If what it saves is only the executed contracts i.e. the contracts whereunder the goods have been imported and received by the buyer before the merger, no further protection is necessary as ordinarily no question of enforcement of the contracts under the pre-existing law would arise. The phraseology used is not an innovation but is copied from other statutory clauses. Section 6 of the General clauses Act (10 of 1897) says that unless a different intention appears, the repeal of an Act shall not affect anything duly done or suffered thereunder. So too, the Public Health Act of 1858 (38 & 39 Vict. c. 55) which repealed the Public Health Act of 1848 contained a proviso to Section 343 to the effect that the repeal “shall not affect anything duly done or suffered under the enactment hereby repealed”, This proviso came under judicial scrutiny in Queen v. Justices of the West Riding of Yorkshire [(1876) 1 QBD 220]. There notice was given by a local board of health of intention to make a rate under the Public Health Act, 1848, and amending Acts. Before the notice had expired these Acts were repealed by the Public Health Act, 1875, which contained a saving of “anything duly done” under the repealed enactments, and gave power to make a similar rate upon giving a similar notice. The board, in ignorance of the repeal, made a rate purporting to be made under the repealed Acts. It was contended that as the rate was made after the repealing Act, the notice given under the repealed Act was not valid. The learned Judges held that as the notice was given before the Act, the making of the rate was also saved by the words “anything duly done” under the repealed enactments. This case illustrates the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed, but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal. Under similar circumstances Lindley, L.J., in Heston and Isleworth Urban District Council v. Grout [(1897) 2 Ch 306] confirmed the validity of the rate made pursuant Page 17 of 19 to a notice issued prior to the repeal. Adverting to the saving clause, the learned Judge tersely states the principle thus at p. 313:“That to my mind preserves that notice and the effect of it”. On that principle the court of appeal held that the rate which was the effect of the notice was good.
18. Nor can we find any justification for the second criticism. In the instant case the legal position is exactly the same. By reason of the Indo-French Agreement the Government of India made the Order under the Foreign Jurisdiction Act applying the Indian laws to Pondicherry, The effect of that Order was that the French laws were repealed by the application of the Indian laws in the same field occupied by the French laws subject to a saving clause. The position is analogous to that of a statute repealing another with a saving clause. If the English decisions apply to the latter situation, we do not see how they do not apply to the former. In both the cases the pre-existing law continues to govern the things done before a particular date. We, therefore, hold that the words “things done” in para 6 of the Order are comprehensive enough to take in a transaction effected before the merger, though some of its legal effects and consequences projected into the post-merger period.” (Emphasis supplied)
19. As already discussed, no doubt, the above paragraphs were said in the context of an existing saving clause in the notification in question. However, the ratio of Anushka Rengunthwar (supra) and Universal Imports Agency (supra) have a great bearing on the present cases while grappling with the concept of vested rights and understanding the same. Page 18 of 19
20. Additionally for the reasons stated above, I endorse the operative directions in the judgment given by my learned Sister.
……….........................J. [K. V. VISWANATHAN] New Delhi;
9th October, 2025 Page 19 of 19