Observing that concerns over a couple’s parenting abilities cannot be invoked retrospectively to restrict their reproductive choice, the Supreme Court on Thursday (October 9, 2025) ruled that the age limits under the Surrogacy (Regulation) Act, 2021, do not apply to couples who had frozen their embryos and initiated the surrogacy process before the law came into force on January 25, 2022.
A Bench of Justices B.V. Nagarathna and K.V. Viswanathan delivered concurring opinions while hearing applications filed by three couples who argued that they had created and preserved embryos long before the enactment of the 2021 law and were therefore unfairly disqualified by the subsequent age limits.
Under Section 4(iii)(c)(I) of the Act, an intending couple is eligible for surrogacy only if the woman is between 23 and 50 years of age and the man is between 26 and 55 years. The petitioners contended that these limits could not retrospectively disqualify those who had already completed the medical procedures culminating in embryo freezing.
Justice Nagarathna observed that the law should not draw a distinction between couples who conceive naturally and those who require medical assistance to do so. “...Prior to the enforcement of the Act, the intending couples 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,” she said. She further noted that there are no age restrictions in adoption under personal laws and questioned why such restrictions should apply to couples who, for medical reasons, opted for assisted reproduction.
