Age restrictions under surrogacy law cannot be applied retrospectively: SC

NEW DELHI: In a significant verdict, the Supreme Court on Thursday held that age restrictions would not apply to all intending couples who began the process of having a child prior to the enactment of the Surrogacy (Regulation) Act, 2021. The court ruled that couples who had frozen their embryos before the implementation of the law on 25 January 2022 would be allowed to proceed with surrogacy irrespective of their age. The right to make reproductive choices, including pursuing surrogacy, is a facet of personal liberty and privacy protected under Article 21 of the Constitution, said a two-judge bench comprising Justices B.V. Nagarathna and K.V. Vishwanathan. Rejecting the Centres plea, which argued that children born through surrogacy would not be properly cared for by older intending couples, the apex court said that the creation and freezing of embryos represents the crystallisation of the process and clearly demonstrates the couples intent. Allowing the writ petitions filed by Vijaya Kumari S and others, the court held that the age restriction provision under Section 4(iii)(c)(1) of the Surrogacy (Regulation) Act, 2021 would not have retrospective effect. 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, the bench stated. The top court further observed that when there was no age restriction at the stage of creation and freezing of embryos prior to the enforcement of the Act, the age restriction under the new law could not be applied retrospectively. The court noted that doing so would frustrate not only the surrogacy procedure but also the couples right to have a surrogate child, a right protected under Article 21 of the Constitution. The bench emphasised that the rule against retrospective operation of statutes applies in this case to preserve the rights of the intending couples. If we do not apply the aforesaid principle of interpretation of statutes, we would be 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, the court said.