Supreme Court Ruling Protects surrogacy Rights for Couples

The Supreme Court has ruled that couples who froze embryos for surrogacy before the Surrogacy (Regulation) Act, 2021 came into effect on January 25, 2022, retain the right to pursue surrogacy. The court determined that the Act cannot retroactively invalidate these pre-existing rights.

Justice KV Viswanathan, in a concurring opinion, explained that completing the fertilization process before the cut-off date established a legally recognized right. He stated that the subsequent introduction of age limits in Section 4(iii)(c)(I) of the Act doesn’t negate the couples’ established position.

“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“, Justice Viswanathan wrote.

This opinion supports Justice BV Nagarathna’s finding that couples with frozen embryos initiated before January 25, 2022, are eligible to proceed with surrogacy, even if they now exceed the age limits outlined in the Act.

The 2021 law sets the age range for intending women between 23 and 50 years, and for men between 26 and 55 years. This case stemmed from petitions filed by couples who began the surrogacy process prior to the law’s enactment and subsequently sought eligibility certificates under the new regulations.

Justice KV Viswanathan concurred with Justice B.V. Nagarathna’s view that the 2021 Act cannot be applied retroactively to prevent these couples from continuing with their planned surrogacy.

Prior to the 2021 Act, there were no legal age restrictions for intending parents undergoing surrogacy in India.

Key Takeaways

• Couples who froze embryos for surrogacy before January 25, 2022, have a vested right to proceed with surrogacy.
• The Surrogacy (Regulation) Act, 2021 cannot be applied retroactively to deny these couples their rights.
• The court recognized that fertilization before the Act’s enactment created a legally protected position for the intending parents.
• The age limits stipulated in the 2021 Act do not apply to couples who initiated the process beforehand.
• Prior to 2021, no age restrictions existed for intending parents pursuing surrogacy in india.