Surrogacy Age Limit: Protected Rights for Couples with Frozen Embryos

❓ Question

If you and your partner started the medical process for surrogacy and had your embryos created and frozen before a new law came into effect, can the government later stop you from proceeding solely because you have now crossed an age limit specified in that new law?

✅ Answer

No, the government cannot stop you.

The Supreme Court has ruled that if you had commenced the surrogacy process by creating and freezing embryos before the Surrogacy (Regulation) Act, 2021 came into force (January 25, 2022), the new age restrictions do not apply to you retrospectively.

Your right to proceed with surrogacy is protected, and you cannot be disqualified for being over the age of 50 (for women) or 55 (for men) on the date you now seek official certification.

⚖️ Understanding the Legal Principles

[1] Your "Vested Right" is Protected Against Retrospective Lawmaking

The Court reinforced a fundamental legal principle: a new law is presumed to apply only to future events, not to undo actions lawfully taken in the past.

The Critical Point of "Commencement": The Court defined the creation and freezing of embryos as the crucial stage where a couple's intention to pursue surrogacy becomes concrete. By reaching this stage before the new law, you crystallized a "vested right" to become parents through surrogacy.
Not a Mere Hope: This right was not a vague future hope. It was a substantive right you actively exercised under the legal framework that existed at that time, which had no upper age limit.
The Law's Silence on Retrospectivity: The Surrogacy Act does not explicitly state that its age limits should apply to couples who had already started the process. In the absence of such clear language, the Court refused to interpret the law in a way that would unfairly destroy this vested right.

[2] The Decision to Have a Child is a Fundamental Constitutional Right

The Court anchored its reasoning in the right to reproductive autonomy, which is a part of the fundamental right to life and personal liberty under Article 21 of the Constitution.

A Personal Choice: The decision of if, when, and how to have a child is a deeply personal one. Before the 2021 Act, this freedom included the choice to pursue surrogacy regardless of age.
No State Interference in Past Choices: The Court held that for couples who had already exercised this freedom by commencing treatment, the State cannot retrospectively impose age-based restrictions. It noted that the law places no such age-based restrictions on couples who can conceive naturally or wish to adopt, making a retrospective bar on surrogacy unfair.

[3] The Government's Concerns Do Not Justify Retrospective Application

The government argued that age limits ensure the welfare of the child and the quality of parenting, and that gamete quality declines with age.

The Court's Rejection: The Court found these concerns insufficient to justify retrospective application. When couples began the process, they were free from these state-imposed considerations. To now block them while older couples can conceive naturally or adopt would be arbitrary and unfair.

[4] The "Freezing of Embryos" is the Key Milestone

The Court provided a clear, practical test to determine which couples are protected from the new age restrictions.

The Two-Stage Process:
- Stage A: Steps involving the intending couple (clinic visits, counselling, gamete extraction, creation and freezing of embryos).
- Stage B: Steps involving the surrogate mother (embryo transfer, implantation, pregnancy, birth).
The Crystallizing Event: Completing Stage A—specifically, creation and freezing of embryos—is the definitive act showing intention. If completed before the law came into force, you are shielded from age limits.

🧭 Your Action Plan

👨‍👩‍👧 If You Are an Intending Couple Who Started Surrogacy Before 2022

1

Gather and Organize Your Medical Evidence

Prove that you commenced the process before January 25, 2022. Collect:

Dated medical records from fertility clinics
Laboratory reports confirming extraction of eggs and sperm
Official documentation confirming creation and freezing of embryos before January 25, 2022

2

Prepare Your Legal Argument

When applying for your eligibility certificate:

Lead with the Timeline: State that you created and froze embryos before the Act came into force
Cite the Judgment: Reference Arun Muthuvel (2025 INSC 1209) and its principle that the age limit cannot be applied retrospectively
Assert Your Vested Right: Explain that you lawfully exercised your right before the Act

3

Seek Legal Redress if Challenged

If authorities deny certification based solely on age, you can legally challenge it.

You may file a petition in your jurisdictional High Court citing this Supreme Court ruling.

🏛️ If You Are a Government Authority

1

Apply the "Commencement" Test

Ask: "Did this couple create and freeze embryos before January 25, 2022?"

If yes, do not apply the age restriction under Section 4(iii)(c)(I).

2

Focus on Other Statutory Requirements

Ensure compliance with:

Valid Certificate of Essentiality (Rule 14, Surrogacy Rules)
Protection of the surrogate mother
Altruistic (non-commercial) surrogacy

📘 Key Legal Provisions Explained

                    ⚖️ Principles Against Retrospectivity
                    General Rule: Laws are prospective — they govern future acts, not past lawful ones
Vested Rights: Once a person has fulfilled all legal steps, their right becomes vested. Couples with frozen embryos had completed their legal obligations, thus securing the right to proceed

                

                    🏛️ Constitutional & Statutory Framework
                    Article 21: Protects reproductive autonomy under the right to life and liberty
Surrogacy (Regulation) Act, 2021 — Section 4(iii)(c)(I): Sets age limits (23–50 years for females, 26–55 for males). The Court clarified these do not apply retrospectively
Section 53 — Transitional Provision: Provided a grace period for pregnant surrogate mothers. This judgment extends similar protection to couples at the frozen-embryo stage

                

🧠 Core Takeaway from the Supreme Court

"The creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples... the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples."

This judgment reaffirms constitutional rights over bureaucratic rigidity. It protects citizens from having their life plans undone by retroactive laws. The State may regulate the future — not rewrite the lawful past.