The Supreme Court on October 9 held that the age cap introduced in the Surrogacy (Regulation) Act, 2021, will not apply to couples with frozen embryos before the commencement of the Act.The Bench comprising Justices B V Nagarathna and K V Viswanathan said that the couples had already begun the process before the Act came into effect, and that the new restrictions could not take away their right to have a child through surrogacy.“The right to decide to bear children through surrogacy despite their ages is one that can legitimately be considered to have vested in the intending couple,” the SC observed.The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy. Together, these laws lay down age limits on those intending to have a child through surrogacy.What was the case?Several writ petitions had been filed before the SC by couples who had begun their treatment before the enactment of the law, but the new law’s age limits made them ineligible for surrogacy.The case before the SC pertained to three petitions filed by couples requesting eligibility certificates under the Surrogacy Act, arguing that they had initiated the process before the Act came into effect.In one of the petitions, the husband is 62 years old, while the wife is about 56 years old. The couple lost their only child in 2018 and, desirous of having another child, began fertility procedures in 2019.Story continues below this adAfter facing delays due to the disruptions induced by the COVID-19 pandemic, they were able to eventually arrange for an embryo transfer in early 2022.The petition states that their pregnancy was unsuccessful, and by the time they sought to proceed with another transfer, they had crossed the age limit laid down by the surrogacy law.What are the provisions of the surrogacy law?The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, enacted in January 2022, together ban commercial surrogacy and allow only altruistic surrogacy.According to the government, this change in law was intended to prevent the commodification of reproductive labour and to impose procedural safeguards to ensure that surrogacy is used only in cases of medical necessity.Story continues below this adThe Surrogacy (Regulation) Act lays down eligibility conditions for couples intending to seek surrogacy. The law states that for intending couples, the woman must be between 23 and 50 years of age, and the man between 26 and 55 years.The process requires the couple to obtain a certificate of essentiality, which includes proof of infertility, a court order establishing parentage and custody, and insurance for the surrogate.Single women are eligible only if they are widows or divorcees between the ages of 35 and 45. This is under challenge before the SC because the definition of single women excluding unmarried women is arbitrary and violative of Articles 14 and 21 of the Constitution.The SC has not taken up this issue in the current batch of petitions for adjudication.Story continues below this adSection 53, the transitional clause, which protects only “existing surrogate mothers” for 10 months, was debated for excluding intending couples already in the process. Petitioners argued this omission was arbitrary. Reference was also made to the Assisted Reproductive Technology (Regulation) Act, 2021, which carries similar age provisions and was examined.What arguments did the petitioners make?At its core, the question was whether the new restrictions could be imposed retrospectively, and whether the couples had already acquired a right to continue under the earlier framework.The petitioners argued that the law should not be applied to them after its implementation. They pointed out that they had lawfully started the process, including freezing their embryos, when no age bar existed. That step, they said, marked the final expression of their decision to pursue surrogacy, and the law could not now take that away.Invoking the right to reproductive autonomy under Article 21, the petitioners argued that deciding how and when to have a child is a deeply personal choice. Imposing a rigid age limit, they said, was arbitrary and had no real connection to the law’s stated goals of preventing exploitation or protecting surrogate mothers. They also submitted that the age limit created an unreasonable classification, violating Article 14 of the Constitution, and also interfered with reproductive autonomy, which is a facet of Article 21, which protects personal liberty.Story continues below this adRegulatory laws usually offer transitional safeguards for those navigating compliance during a legislative shift. These provisions are called “grandfather clauses”, which “grandfather in” certain existing situations. The Surrogacy Act has no such transitional clauses.The petitioner’s challenge also raised broader concerns, including the right of single, unmarried women to pursue parenthood through surrogacy, a choice that the current law does not accommodate.Also in Explained | Judicial blueprint for pedestrian safety: Why the new SC order is important for most vulnerable road users?The Centre, on the other hand, defended the age restrictions as reasonable and necessary. It has said that the statutory age caps are based on recommendations from medical experts, and align with practices in reproductive health. The government emphasised that surrogacy is not a fundamental right but a regulated, statutory one, and that the right to reproductive autonomy cannot be stretched to include the use of another person’s body for reproduction. It added that the age limits were set to ensure that children are raised by parents of an age capable of providing care and stability.The government also pointed to the Act’s transitional clause (Section 53), which offers protection only to ongoing surrogacies involving existing surrogate mothers. Parliament, it argued, had consciously chosen not to extend this protection to couples who had only frozen embryos before the law came into effect. Since the right to surrogacy now flows entirely from the statute, the government maintained that it must be exercised within the boundaries of the new law, not outside it.Story continues below this adDuring the oral arguments, when the Additional Solicitor General (ASG) mentioned the risks associated with geriatric pregnancies, Justice Nagarathna pointed out that some couples “will take the risk” anyway. Essentially, the Bench asked why surrogacy as an option must be outlawed for an older couple when natural geriatric pregnancies are not outlawed.The ASG responded that advanced parental age influences both an unborn child’s health through genetic and epigenetic changes, and also the filial love that a child requires for 20 years of their life.“Rational nexus to the object of the Act is absent by having this age bar, especially as there is a void regarding not taking care of the couples who have already commenced. Genuine intending couples who had commenced surrogacy, the Act doesn’t care for them and puts an embargo. Stop, no children! Look how harsh it is,” Justice Nagarathna said, emphasising that the Surrogacy Act’s intent is to prevent commercial surrogacy, not genuine parenthood.What did the SC rule?The SC examined that a surrogacy process can be said to have “commenced” when the fertilised embryos develop into a foetus. This marks the crystallisation of the fee. The foetus, it said, refers to “a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation and ending at birth,” after which the embryo is transferred into the womb of the surrogate mother.Story continues below this adThe couples before the court had already completed the fertilisation process and frozen the embryos before the law came into force. Stopping them now, the SC said, would “in effect frustrates the right of intending couples attempting to have a surrogate child, which is a constitutional right regulated by statute.”In defining the scientific stages, the court referred to the Act’s own terminology: a zygote is the fertilised egg before the first cell division; an embryo is the developing organism until the end of 56 days after fertilisation; and a foetus is the human organism from the 57th day of development until birth. The SC clarified that the process “commences” at the embryo stage, not the foetal stage, because that is when the couple’s biological and legal intent to proceed with surrogacy is fully formed.On the application of the law, the court stated that the age limits introduced by the law must apply only prospectively, not retrospectively. “A new law ought to regulate what is to follow and not the past,” they said. Unless a law expressly says otherwise, it is presumed to operate prospectively.“When there was no age restriction at the stage of creation of embryos and freezing them… the age restriction under the Act cannot be permitted to operate retrospectively,” the SC said. Doing so, it added, would “frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right under Article 21 of the Constitution.”Story continues below this adIn his concurring opinion, Justice Vishwanath also noted that Section 53 “cannot be construed as a free license under the Act to divest vested right,” and clarified that rights that had already accrued before the law came into effect “do not stand neutralised.”