Vijaya Kumari v. Union of India
“Surrogacy Act Age Bar Cannot Retrospectively Strip Reproductive Rights of Couples Who Froze Embryos Before the Law”
TL;DR
The Supreme Court held that the age restrictions under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively to couples who had already commenced the surrogacy process by freezing embryos before the Act came into force on 25th January 2022. The Court recognized reproductive autonomy as a dimension of personal liberty protected under Article 21.
The Bottom Line
If you and your spouse had already created and frozen embryos for surrogacy before the Surrogacy Act came into effect in January 2022, you can still proceed with surrogacy even if you now exceed the age limits of 50 (women) or 55 (men) set by the law.
Case Timeline
The journey from FIR to Supreme Court verdict
Urvashi Case: Embryos Created
Urvashi and husband create and freeze embryos in Mumbai for surrogacy
Urvashi Case: Embryos Created
Urvashi and husband create and freeze embryos in Mumbai for surrogacy
Vijaya Kumari: Embryos Created
Vijaya Kumari and husband create and freeze embryos in Chennai after failed IVF attempts
Vijaya Kumari: Embryos Created
Vijaya Kumari and husband create and freeze embryos in Chennai after failed IVF attempts
Surrogacy Act Comes Into Force
Surrogacy (Regulation) Act, 2021 takes effect, imposing age limits of 50 (women) and 55 (men)
Surrogacy Act Comes Into Force
Surrogacy (Regulation) Act, 2021 takes effect, imposing age limits of 50 (women) and 55 (men)
Arun Muthuvel: Surrogate Miscarriage
Arun Muthuvel's surrogate suffers miscarriage just before the Act took effect
Arun Muthuvel: Surrogate Miscarriage
Arun Muthuvel's surrogate suffers miscarriage just before the Act took effect
Surrogacy Rules Notified
Surrogacy (Regulation) Rules, 2022 implemented with detailed certification requirements
Surrogacy Rules Notified
Surrogacy (Regulation) Rules, 2022 implemented with detailed certification requirements
Writ Petition Filed (Arun Muthuvel)
First writ petition challenging age restrictions filed before Supreme Court
Writ Petition Filed (Arun Muthuvel)
First writ petition challenging age restrictions filed before Supreme Court
Writ Petitions Filed (Vijaya Kumari & Urvashi)
Two more couples file writ petitions challenging retrospective application of age limits
Writ Petitions Filed (Vijaya Kumari & Urvashi)
Two more couples file writ petitions challenging retrospective application of age limits
Supreme Court Judgment
SC holds age bar cannot apply retrospectively to couples who commenced surrogacy before the Act
Supreme Court Judgment
SC holds age bar cannot apply retrospectively to couples who commenced surrogacy before the Act
The Story
Three sets of couples approached the Supreme Court challenging the age restrictions under the Surrogacy (Regulation) Act, 2021. All three had commenced the surrogacy process before the Act came into force on 25th January 2022, but were now barred from proceeding due to the age limits.
Vijaya Kumari S. and her husband, a married couple from Chennai, had undergone multiple failed IVF attempts. They created and froze embryos in 2021. However, due to delays caused by the COVID-19 pandemic, the embryo transfer could not take place before the Act came into force. By 2024, the wife was over 50 years and the husband was over 55 years, exceeding the statutory age limits.
Urvashi and her husband from Mumbai had created embryos in 2019. Pandemic-related delays meant the husband had exceeded 55 years by the time they sought to proceed with surrogacy after the Act's enforcement.
Arun Muthuvel and his wife (aged 62 and 56 respectively) had initiated surrogacy before 2022 and created embryos, but the surrogate miscarried in January 2022, just before the Act took effect. They were now well beyond the age limits.
The Surrogacy (Regulation) Act, 2021, which came into force on 25th January 2022, imposed age limits of 23-50 years for women and 26-55 years for men for intending couples seeking surrogacy. Section 53 of the Act provided transitional protection only for existing surrogate mothers, but contained no saving clause for couples who had already commenced the surrogacy process by freezing embryos.
The Union of India defended the age restrictions on grounds of child welfare, health of the surrogate mother, and medical rationale regarding declining gamete quality. The Government argued that surrogacy is a statutory creation and not a fundamental right.
Legal Issues
Click each question to reveal the Supreme Court's answer
Arguments
The battle of arguments before the Supreme Court
Petitioner
Vihaan Kumar
Non-retrospectivity of legislation
The petitioners invoked the principle of non-retrospectivity, arguing that legislation cannot retrospectively affect vested rights without an explicit statement to that effect by the legislature.
Vested reproductive rights under Article 21
The couples exercised their reproductive autonomy before the Act by taking concrete steps including IVF and embryo freezing. This right is guaranteed under Article 21 as recognized in privacy and reproductive rights jurisprudence.
Arbitrary discrimination in age restrictions
No age restrictions exist for natural conception or adoption. The selective imposition of age restrictions only for surrogacy was argued to be disproportionate and discriminatory.
Good faith action and pandemic delays
The couples had acted lawfully and in good faith before the Act came into force. The COVID-19 pandemic caused unforeseen delays in embryo transfer that were entirely beyond their control.
Respondent
State of Haryana
Age limits protect surrogate mothers and child welfare
The Union of India argued that age limits serve the twin purposes of protecting the health of surrogate mothers and ensuring child welfare by ensuring parents are capable of stable guardianship.
Surrogacy is not a fundamental right
The Government contended that surrogacy is a statutory creation, not a fundamental right. Since it involves a third party's body (the surrogate), stricter regulation is justified.
Section 53 limits transitional protection intentionally
Section 53 explicitly limits transitional protection to existing surrogate mothers. The exclusion of intending couples from transitional provisions shows legislative intent.
Medical rationale for age limits
Age restrictions are based on scientific data regarding declining gamete quality and increased health risks for both the mother and child after certain ages.
Court's Analysis
How the Court reasoned its decision
The Supreme Court delivered a landmark ruling recognizing reproductive autonomy as a constitutional right under Article 21. The Court held that the age bar under the Surrogacy Act cannot be applied retrospectively to couples who had already commenced the surrogacy process before the Act came into force. The Court balanced the legislative purpose of regulating surrogacy with the protection of vested reproductive rights, applying the principle of non-retrospectivity.
Reproductive autonomy, including the choice to have children through surrogacy, is a dimension of personal liberty protected under Article 21 of the Constitution.
Para Para 45
Recognizes surrogacy as part of the constitutional right to reproductive autonomy under Article 21.
Freezing of embryos prior to January 25, 2022 constitutes commencement of surrogacy procedure.
Para Para 52
Defines the legal threshold for what constitutes commencement of surrogacy, providing clarity for future cases.
The Act's primary purpose was to prevent exploitation and regulate surrogacy clinics, not to deprive bona fide couples of pre-existing rights.
Para Para 58
Interprets the legislative intent of the Surrogacy Act purposively, distinguishing regulation from deprivation of rights.
There is no presumption of retrospective operation in the absence of explicit legislative intent. Actions lawfully undertaken under the previous legal regime cannot be undermined by subsequent legislation.
Para Para 65
Applies the settled constitutional principle of non-retrospectivity to protect pre-existing reproductive rights.
The Verdict
Relief Granted
The petitioner couples are permitted to proceed with surrogacy using their frozen embryos despite exceeding the statutory age limits, subject to compliance with all other conditions under the Act.
Directions Issued
- The age bar under Section 4(iii)(c)(I) shall not apply to couples who commenced surrogacy (evidenced by embryo fertilization and freezing) before 25th January 2022
- The National Surrogacy Board must allow such couples to proceed with embryo transfer and surrogacy after ensuring compliance with other legal and medical conditions
- The petitioners are exempted from seeking certification on the qualifying age for continuing the surrogacy procedure
- All other conditions under the Surrogacy (Regulation) Act, 2021 and Rules, 2022 must be complied with
- The appropriate authorities shall process the applications of the petitioners without reference to the age restrictions
Key Legal Principles Established
Reproductive autonomy, including surrogacy, is a dimension of personal liberty under Article 21
The Surrogacy Act age bar cannot be applied retrospectively to couples who commenced surrogacy before the Act
Freezing of embryos constitutes commencement of surrogacy procedure
No presumption of retrospective operation exists without explicit legislative intent
Vested reproductive rights lawfully acquired cannot be defeated by subsequent legislation
Age restrictions for surrogacy are discriminatory when absent for natural conception and adoption
Key Takeaways
What different people should know from this case
- If you and your spouse froze embryos for surrogacy before January 25, 2022, you can still proceed with surrogacy even if you now exceed the age limits set by the new law
- Your right to become a parent through surrogacy is constitutionally protected under Article 21 as part of your personal liberty
- The Supreme Court recognizes that couples who took genuine steps toward surrogacy before the law changed should not be penalized for delays caused by circumstances like COVID-19
- You must still comply with all other conditions of the Surrogacy Act -- only the age restriction is waived for pre-Act couples
- This ruling may help other couples in similar situations who commenced surrogacy procedures before the Act came into force
Legal Framework
Applicable laws and provisions
Constitutional Provisions
Article 21
Constitution of India
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Relevance: The Court recognized reproductive autonomy, including the choice to have children through surrogacy, as a dimension of personal liberty protected under Article 21.
Article 14
Constitution of India
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Relevance: Petitioners argued that selective age restrictions for surrogacy (absent for natural conception and adoption) violated the right to equality.
Statutory Provisions
Section 4(iii)(c)(I)
Surrogacy (Regulation) Act, 2021
“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.”
Relevance: The age restriction provision that was challenged and held inapplicable retrospectively to pre-Act couples.
Section 53
Surrogacy (Regulation) Act, 2021
“Transitional provision for existing surrogate mothers to continue pregnancy under the new regulatory framework.”
Relevance: Provided transitional protection only for surrogate mothers, not for intending couples with frozen embryos -- the legislative gap the Court addressed.
Rules regarding certification
Surrogacy (Regulation) Rules, 2022
“Detailed rules governing the certification process for intending couples seeking surrogacy.”
Relevance: The rules require age certification which was the mechanism through which the petitioners were being denied surrogacy.
Related Cases & Precedents
K.S. Puttaswamy v. Union of India
followed(2017) 10 SCC 1
Recognized the right to privacy and personal liberty under Article 21, forming the foundation for reproductive autonomy.
Suchita Srivastava v. Chandigarh Administration
followed(2009) 9 SCC 1
Established the framework for reproductive autonomy as a constitutional right under Article 21.
X v. State (NCT of Delhi)
cited(2023) 9 SCC 433
Expanded the scope of reproductive freedom, further developing the reproductive rights jurisprudence.
CIT v. Vatika Township
followed(2015) 1 SCC 1
Established the principle of non-retrospectivity: legislation cannot retrospectively affect vested rights without explicit statement.
S.L. Srinivasa Jute Twine Mills v. Union of India
cited(2006) 2 SCC 740
On the limits of retroactive legislation and protection of vested rights.
K. Gopinathan Nair v. State of Kerala
cited(1997) 10 SCC 1
Vested rights doctrine -- rights lawfully acquired cannot be defeated by subsequent legislation.
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