The Supreme Court on Thursday ruled that restrictions imposed by the Surrogacy (Regulation) Act, 2021 on the age limits of couples who choose to become parents through surrogacy, will not apply to couples who started the surrogacy process before the Act came into force in January 2022.

A Bench of Justices BV Nagarathna and KV Viswanathan passed the ruling on petitions by three couples who had crossed the upper age limit specified in the Surrogacy Act (50 for female and 55 for males) but who had begun the process of surrogacy (by freezing embryos, transferring it the womb etc) before the 2021 law was enacted.

"We have held that if the surrogacy process has begun before the Act and they had frozen embryos or were in the process of transferring embryos to a surrogate mother - in that case, the age restriction will not apply ... Writ petitions are allowed. If any other intending couple has a similar issue and wishes to seek redressal, they may approach the High Court and apply this judgment," the Court said today.

It added that the phrase 'surrogacy process' referred to here means an act like freezing embryos, and not acts like visiting a medical clinic. The Court clarified that the 2021 Act's restrictions would not apply only if the intending couple had taken steps such as extracting gametes, freezing embryos, and transferring the same to the womb, which would show the couple's clear intention to go through with the surrogacy.

"So, if the surrogate child is born within 10 months of the 2021 Act, the age restriction to couples will not be applicable ... Here, the couple was in the last stage of the process and a step away from (engaging) the surrogate mother. It is only after the intending couple has extracted eggs and fertilised the embryo ...and frozen the same.. that is the stage where it can be said that the couple has decided to go for surrogacy, and the only step is to involve the surrogate mother," Justice Nagarathna added, while dictating operative portions of the lead judgment.

She also clarified that the validity of the age restriction for couples covered by the 2021 law has not been considered in this judgment.

Justice Viswanathan penned a concurring judgment in which he observed,

"The petitioners had exercised the liberty (to have a child by surrogacy) when there was no disability (including age restrictions) as such. It was only after the process that the age bar and marriage restriction were introduced."

The Surrogacy (Regulation) Act of 2021 came into force on January 25, 2022.

Section 4 (iii)(c)(I) of this Act lays down that the intending couple must be married and between the age of 23 to 50 years in the case of female, and between 26 to 55 years, in case of male, to be eligible to have a child through surrogacy.

This restriction was challenged by three couples, who had crossed the upper age limit laid down in this Section. They argued that this age restriction cannot be applied to them since they had begun the surrogacy process before such a legal restriction was introduced.

The Court today granted them relief.

"Here, owing to medical reasons, the couple could not have children naturally.. Can they now be denied just because of the age bar under this Act? We cannot say so. We are not questioning the Parliament's intent but we are on a couple who began the process of surrogacy before the Act came into place," the Bench held.

It concluded that the reasons given by the Central government for a retrospective application of the 2021 Act's age restrictions to couples who began the surrogacy process before the law was enacted, were not adequate.

The Court also briefly questioned the reasoning behind imposing such age restrictions although it did not ultimately decide on their validity.

"Although the Union has argued that the age limit is linked to the welfare of children, we are unable to agree since there is unlimited freedom available to couples who have children naturally," it observed.

A detailed copy of the order is awaited.

[Live Coverage]