# Vijaya Kumari S & Another v. Union of India

- **Citation:** 2025 INSC 1209
- **Court:** Supreme Court of India
- **Decided:** 2025-10-09
- **Bench:** B.V. Nagarathna, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vijaya-kumari-s-another-v-union-of-india-38119
- **Pages:** 61

## Headnote

Issue arose whether the age-restrictions u/s.4(iii)(c)(I) of Surrogacy
(Regulation) Act, 2021 should be applied to intending couples, all
of whom had commenced the surrogacy process, to the extent of
having their embryos frozen, before the enforcement of the Act.
Headnotes†
Surrogacy (Regulation) Act, 2021 - s.4(iii)(c)(I) - Regulation
of surrogacy and surrogacy procedures - Application of the
age-restrictions on 'intending couples' u/s.4(iii)(c)(I) who had
frozen their embryos, before the enforcement of the Act - Act
of 2021 Act came into force wef 25.01.2022, whereby the upper
age limit fixed for the intending couple by s.4(iii)(c)(I), the female
cannot be over and above 50 years of age and the male cannot
be over and above 55 years of age - Petitioners-intending
couples had commenced the surrogacy procedures-completed
the Stage A process (freezing of embryos) prior to the date
of enforcement of the Act - However, the Act brought in an
embargo in the form of the age-limit and petitioners barred from
continuing the surrogacy procedure post the enforcement of
the Act - Age-related restrictions, if applicable retrospectively
to the petitioners-intending couples availing surrogacy:
Held: If an intending couple had commenced the surrogacy
procedure prior to the commencement of the Act i.e., 25.01.2022;
and were at the stage of creation of embryos and freezing after
extraction of gametes; and on the threshold of transfer of embryos
to the uterus of the surrogate mother, the age restriction u/s.4(iii)(c)
(I) would not apply - Competent authority, on being satisfied about
the said conditions shall issue the certification provided r.14 of the
Rules are satisfied by the intending couples - Thus, s.4(iii)(c)(I)
* Author
[2025] 11 S.C.R.
137
Vijaya Kumari S & Another v. Union of India
does not have retrospective operation and would not apply to the
petitioners-intending couples - At the time the intending couples
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 the enforcement of the Act-25.01.2022, there were no binding
laws, certifications, etc. regarding age restrictions on intending
couples-petitioners wishing to avail surrogacy - Thus, for couples
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 - Right
to surrogacy as a facet of autonomy u/Art.21 was unrestricted prior
to the enforcement of the Act - Right to decide that despite one's
age, one wishes to have children through surrogacy, was afforded
to intending couples u/Art.21 prior to the enforcement of the Act -
Intending couples commenced the process of surrogacy, to the
extent of freezing their embryos in preparation for transfer to the
womb of the surrogate mother - It cannot be said that intending
couples, who are above the prescribed age-limits under the Act,
will not be able to effectively parent their children - 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 - For intending couples who undertook surrogacy
procedures prior to the Act, age-related considerations were entirely
their prerogative and an exercise of their rights u/Art.21 - Since
there is no manifest intention in the provisions of the Act to apply
the age-limits retrospectively, the same is not permissible - Right
to surrogacy vested in intending couples prior to the enforcement
of the Act, 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 - Thus, such a constitutional right cannot
be taken away retrospectively from them on accou

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[2025] 11 S.C.R. 136 : 2025 INSC 1209
Vijaya Kumari S & Another
v.
Union of India
(Writ Petition (Civil) No. 331 of 2024)
09 October 2025
[B.V. Nagarathna* and K.V. Viswanathan,* JJ.]
Issue for Consideration
Issue arose whether the age-restrictions u/s.4(iii)(c)(I) of Surrogacy
(Regulation) Act, 2021 should be applied to intending couples, all
of whom had commenced the surrogacy process, to the extent of
having their embryos frozen, before the enforcement of the Act.
Headnotes†
Surrogacy (Regulation) Act, 2021 - s.4(iii)(c)(I) - Regulation
of surrogacy and surrogacy procedures - Application of the
age-restrictions on 'intending couples' u/s.4(iii)(c)(I) who had
frozen their embryos, before the enforcement of the Act - Act
of 2021 Act came into force wef 25.01.2022, whereby the upper
age limit fixed for the intending couple by s.4(iii)(c)(I), the female
cannot be over and above 50 years of age and the male cannot
be over and above 55 years of age - Petitioners-intending
couples had commenced the surrogacy procedures-completed
the Stage A process (freezing of embryos) prior to the date
of enforcement of the Act - However, the Act brought in an
embargo in the form of the age-limit and petitioners barred from
continuing the surrogacy procedure post the enforcement of
the Act - Age-related restrictions, if applicable retrospectively
to the petitioners-intending couples availing surrogacy:
Held: If an intending couple had commenced the surrogacy
procedure prior to the commencement of the Act i.e., 25.01.2022;
and were at the stage of creation of embryos and freezing after
extraction of gametes; and on the threshold of transfer of embryos
to the uterus of the surrogate mother, the age restriction u/s.4(iii)(c)
(I) would not apply - Competent authority, on being satisfied about
the said conditions shall issue the certification provided r.14 of the
Rules are satisfied by the intending couples - Thus, s.4(iii)(c)(I)
* Author
[2025] 11 S.C.R.
137
Vijaya Kumari S & Another v. Union of India
does not have retrospective operation and would not apply to the
petitioners-intending couples - At the time the intending couples
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 the enforcement of the Act-25.01.2022, there were no binding
laws, certifications, etc. regarding age restrictions on intending
couples-petitioners wishing to avail surrogacy - Thus, for couples
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 - Right
to surrogacy as a facet of autonomy u/Art.21 was unrestricted prior
to the enforcement of the Act - Right to decide that despite one's
age, one wishes to have children through surrogacy, was afforded
to intending couples u/Art.21 prior to the enforcement of the Act -
Intending couples commenced the process of surrogacy, to the
extent of freezing their embryos in preparation for transfer to the
womb of the surrogate mother - It cannot be said that intending
couples, who are above the prescribed age-limits under the Act,
will not be able to effectively parent their children - 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 - For intending couples who undertook surrogacy
procedures prior to the Act, age-related considerations were entirely
their prerogative and an exercise of their rights u/Art.21 - Since
there is no manifest intention in the provisions of the Act to apply
the age-limits retrospectively, the same is not permissible - Right
to surrogacy vested in intending couples prior to the enforcement
of the Act, 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 - Thus, such a constitutional right cannot
be taken away retrospectively from them on account of their age,
without an express intention to do so under the Act - Constitution
of India - Art.21. [Paras 13, 13.9, 13.13, 16]
Per K.V. Viswanathan, J. (Concurring): 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 (freezing of embryos) - It is at this
stage that the Act stepped in and in s.4(iii)(c)(I) created a disability
for them by prescribing that unless the intending couple are married
138
[2025] 11 S.C.R.
Supreme Court Reports
and between the age of 23-50 years in case of female and 26-55
years in case of male on the day of certification, eligibility certificate
for initiating, performing, undertaking or conducting surrogacy or
surrogacy procedure shall not be issued - 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 thus, the Act, does not seek to divest that - Submission that
the Act provides a transitional provision and only cases covered
under the transitional provision could be protected cannot be
accepted - Transitional provision operates in its own sphere -
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 - Vested rights
are not divested, and the new disability created will not apply
to petitioners (intending couples), and their rights do not stand
neutralised. [Paras 7, 9, 11, 12]
Surrogacy (Regulation) Act, 2021 - s.4(iii)(c)(I) - 'Commencement'
of 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:
Held: '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 -
Thus, the freezing of embryos 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. [Para 14.3]
Surrogacy (Regulation) Act, 2021 - Statutory interpretation -
Operation of statue, retrospective in nature so as to encompass
intending couples, or the mandatory requirements under
the Act would only apply prospectively from the date of the
enforcement of the Act-when the surrogacy procedure is
commenced on or after 25.01.2022:
[2025] 11 S.C.R.
139
Vijaya Kumari S & Another v. Union of India
Held: In order to determine if a particular statute applies
prospectively or retrospectively, 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 said principles, if the intending couple had attained
the age of 50 and 55 years prior to the coming into force of the
Act and had also commenced the surrogacy procedure would
the certification be denied to them after the coming into force of
the Act, conversely, if the intending couple were within the age
limits when they commenced the surrogacy procedure and on
the date of certification sought under the Act had overreached
the age limits will the certificate be denied to them, in both of
the situations the provision cannot apply retrospectively so as to
deny the certification to the intending couples on the premise that
on the date of issuance of certification they had crossed the age
bar - 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
the stage of creation of embryos and freezing the same - This
was a sufficient manifestation of their intention - Next step was to
transfer the frozen embryos to the uterus of the surrogate mother,
at that stage the age bar under the Act comes into play - Intending
couples have a constitutional right which was unfettered when they
commenced the process of surrogacy - 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 - Thus, 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-transfer of embryos to the uterus
of the surrogate mother, the age restriction under the Act cannot
be permitted to operate retrospectively on such intending couples
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 u/Art.21 of the Constitution. [Paras 15.8, 15.9]
Surrogacy - Concept of surrogacy and its development in
India - Surrogacy as an exercise of reproductive autonomy -
Explained. [Paras 11, 12]
140
[2025] 11 S.C.R.
Supreme Court Reports
Case Law Cited
In the judgment of Nagarathna, J.
K.S. Puttaswamy (Privacy-9J.) v. Union of India [2017] 10 SCR
569 : (2017) 10 SCC 1 - followed.
X2 v. State (NCT of Delhi) (2023) 9 SCC 433; Baby Manji Yamada v.
Union of India [2008] 13 SCR 1126 : (2008) 13 SCC 518; Suchita
Srivastava v. Chandigarh Admn. [2009] 13 SCR 989 : (2009) 9
SCC 1; R. Rajagopal v. State of T.N. [1994] Supp. 4 SCR 353 :
(1994) 6 SCC 632; A v. State of Maharashtra [2024] 5 SCR
470 : (2024) 6 SCC 327; Arun Muthuvel v. Union of India and
Ors., WP (Civil) No. 756 of 2022; Mrs. D and Anr. v. Union of
India and Anr., (Writ Petition (Civil) No.12395/2023); Anushka
Rengunthwar v. Union of India [2023] 5 SCR 243 : (2023) 11 SCC
209; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India [2006]
2 SCR 235 : (2006) 2 SCC 740; K. Gopinathan Nair v. State of
Kerala [1997] 3 SCR 226 : (1997) 10 SCC 1 - relied on.
CIT v. Vatika Township (P) Ltd. [2014] 12 SCR 1037 : (2015)
1 SCC 1; Mrs. D & Anr. v. Union of India & Anr., W.P.(C)
No.12395/2023; Javed v. State of Haryana [2003] Supp. 1 SCR
947 : (2003) 8 SCC 369; Hitendra Vishnu Thakur v. State of
Maharashtra [1994] Supp. 1 SCR 360 : AIR 1994 SC 2623; State
of Bombay v. Vishnu Ramchandra [1961] SCR 26 : AIR 1961 SC
307; Zile Singh v. State of Haryana [2004] Supp. 5 SCR 272 :
AIR 2004 SC 5100; Monnet Ispat & Energy Ltd. v. Union of India
[2012] 7 SCR 644 : (2012) 11 SCC 1 - referred to.
Nandini K. v. Union of India, 2022 SCC OnLine Ker 8235 -
referred to.
Maxwell v. Murphy, (1957) 96 CLR 261, page No. 267; Secretary of
State for Social Security v. Tunnicliff, (1991) 2 All ER 712; L'office
Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co.
Ltd., (1994) 1 All ER 20 - referred to.
In the judgment of K.V. Viswanathan, J.
Anushka Rengunthwar v. Union of India [2023] 5 SCR 243 :
(2023) 11 SCC 209; M/s Universal Imports Agency v. The Chief
Controller of Imports and Exports [1961] 1 SCR 305 : 1960 SCC
OnLine SC 42 - relied on.
Mrs. D and Anr. v. Union of India and Anr, Writ Petition (Civil)
No.12395/2023 - referred to.
[2025] 11 S.C.R.
141
Vijaya Kumari S & Another v. Union of India
Books and Periodicals Cited
G.P. Singh's Principles of Statutory Interpretation, 15th Edition;
Law Commission of India, 228th report; National Guidelines for
Accreditation, Supervision and Regulation of ART Clinic in India;
Salmond on Jurisprudence, Twelfth Edition by P. J. Fitzgerald -
referred to.
List of Acts
Surrogacy (Regulation) Rules, 2022; Constitution of India; Surrogacy
(Regulation) Act, 2021; Assisted Reproductive Technology
(Regulation) Act, 2021; Hindu Adoptions and Maintenance Act,
1956; Human Fertilization & Embryology Act, UK (1990).
List of Keywords
Surrogacy; Embryos frozen, before the enforcement of the Act;
Operation of statue; Upper age limit fixed for the intending couple;
Dominant intention of the Legislature; Retrospective; Act shall
apply retrospectively; Autonomous decisions regarding the age
at which one wished to pursue surrogacy; Surrogate mother;
Constitutional right to surrogacy; Age-restrictions u/s.4(iii)(c)(I) of
Surrogacy (Regulation) Act, 2021; Intending couples; Surrogacy
process; Regulation of surrogacy and surrogacy procedures;
Application of the age-restrictions on 'intending couples'; Freezing
of embryos; Age-related restrictions; Stage of creation of embryos
and freezing after extraction of gametes; Reproductive autonomy
and parenthood; Right to surrogacy as a facet of autonomy u/Art.21;
'Commencement' of surrogacy procedure; Statutory interpretation
of Surrogacy (Regulation) Act, 2021; Concept of surrogacy and its
development in India; Surrogacy as an exercise of reproductive
autonomy.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 331
of 2024
Under Article 32 of The Constitution of India
With
Writ Petition (Civil) No. 809 of 2024 And I.A. No. 181569 of 2022
in Writ Petition (Civil) No. 756 of 2022
142
[2025] 11 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioners:
Ms. Pinky Anand, Shikhil Shiv Suri, Sr. Advs., Mayank Pandey,
Ashish Kumar Pandey, Nalin Tripathi, Nishank Tripathi, Nischal
Tripathi, Ms. Neelam Singh, Kailashi Uday Kapoor, Akshat
Srivastava, M/s Radiam Law, Ms. Mohini Priya, Ms. Saudamini
Sharma, Ms. Sayesha Gambhir, Samrat Pasriccha, Ms. Nayoleeka
Purty, Ms. Chanya Jaitely, Malak Manish Bhatt, Shyamal Kumar,
Mrs. Madhu Suri, Ms. Jyoti Suri, Ms. Wamika Chadha, Ms. Ishita
Ahuja, Vibhor Choudhary, Ms. Manek Kalyaniwalla, Ms. Divya
Swami, Viresh B. Saharya, Ms. Radhika Thapar Behl, Akshat
Agarwal, Rishabh Sahai Mathur.
Advs. for the Respondent:
Ms. Aishwarya Bhati, A.S.G., Trideep Pais, Sr. Adv., Amrish
Kumar, Gurmeet Singh Makker, Sudarshan Lamba, Rajat Nair,
Ms. Chitrangda Rashtrawara, Ketan Paul, Krishna Kant Dubey,
Mayank Pandey, Aaditya Dixit, Ms. Riddhi Jad, Ms. Shivika Mehra,
Ms. Shreya Munoth, Gautam Bhatia, Ms. Sitamsini Cherukumalli,
Ms. Saloni Ambastha, Ms. Sakshi Jain, Ms. Ameyavikrama
Thanvi, Ivan, Ms. Manjeet Kirpal, Kumar Dushyant Singh,
Ms. Fauzia Shakil,Vishal Navale, Ms. Ananya Arora, Varun
Khetwani, Ms. Shreya Gupta, Ms. Anita Bafna, Deepin Deepak
Sahni, Kks Krishnaraj, Mayilsamy K, Naijal Kumar P, Ms. Dj Millo,
Str Ajay Sharma, Thomas Oommen, Ravindra Sadanand Chingale,
Nandita Rao, Neelam Goswami, Jai Shankar, Sanjeev Gupta,
Ms. Nandini Rao.
Judgment / Order of the Supreme Court
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).
[2025] 11 S.C.R.
143
Vijaya Kumari S & Another v. Union of India
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 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
144
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Supreme Court Reports
(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;
(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.
[2025] 11 S.C.R.
145
Vijaya Kumari S & Another v. Union of India
(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."
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
146
[2025] 11 S.C.R.
Supreme Court Reports
intending couple through 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
[2025] 11 S.C.R.
147
Vijaya Kumari S & Another v. Union of India
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 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
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[2025] 11 S.C.R.
Supreme Court Reports
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:
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:
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Vijaya Kumari S & Another v. Union of India
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
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.
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
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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.
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". 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
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Vijaya Kumari S & Another v. Union of India
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,
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,
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
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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, 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 No.1,
Mr. Shikhil Shiv Suri, learned senior counsel for intending couple
No.2 and Mr. Ivan, learned counsel for intending couple No.3 and
learned Additional Solicitor General (ASG) Ms. Aishwarya Bhati for
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 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
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Vijaya Kumari S & Another v. Union of India
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 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
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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 agerestrictions under the Act run contrary to the constitutional
right 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.
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
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Vijaya Kumari S & Another v. Union of India
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 agerelated restrictions retrospectively to intending couples
who had begun the 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 agelimits 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) 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.
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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.