In News:

In a landmark ruling, the Supreme Court of India held that the age restrictions prescribed under the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively to couples who had already initiated the surrogacy process or had frozen embryos prior to the law’s enforcement. The judgment marks a critical reaffirmation of reproductive autonomy, fairness, and the right to privacy under the Constitution.

Background

Several couples who had preserved embryos before the Surrogacy (Regulation) Act, 2021 came into force approached the Supreme Court after being denied permission to proceed with surrogacy due to the Act’s upper age limit clause.The Act, effective January 25, 2022, mandates that:

• The woman must be between 23 and 50 years, and
• The man must be between 26 and 55 years.

These couples contended that applying such limits retroactively violated their vested reproductive rights and their right to parenthood under Article 21 of the Constitution.

Supreme Court’s Judgment

A Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan ruled in favour of the petitioners, stating that the rights of intending parents crystallised at the time they froze embryos, when no statutory age bar existed. Therefore, the new restrictions cannot invalidate actions undertaken under the previous legal regime.

Key Observations

• Doctrine of Fairness:The Court held that retrospective laws that impair vested rights or impose new burdens violate the principle of fairness and legal certainty, forming part of India’s constitutional jurisprudence.
• Right to Privacy and Bodily Autonomy:Drawing from K.S. Puttaswamy v. Union of India (2017), the bench affirmed that reproductive decisions — including the choice to conceive through surrogacy — are protected under Article 21, which guarantees the right to life and personal liberty.
• Gender and Equality Lens:The Court noted that a restrictive interpretation disproportionately impacts women, who already face biological and societal limitations in reproduction, and cannot be penalised for delays beyond their control.
• Right to Parenthood:Justice Nagarathna emphasised that parenthood is a matter of personal autonomy and that the State cannot judge the parenting capabilities of couples merely based on age.
  She observed:

“Before 2021, there were no binding laws on age restrictions for intending couples. Hence, their right to proceed with surrogacy remains valid.”

• Rebuttal to Government’s Argument:The Centre had argued that age limits were meant to protect the welfare of children born through surrogacy, assuming older parents might not meet long-term responsibilities.
  The Court rejected this view, pointing out that no such limits exist for couples conceiving naturally, making the argument inconsistent.

About the Surrogacy (Regulation) Act, 2021

Objective: To regulate surrogacy procedures in India by allowing only altruistic surrogacy and prohibiting commercial surrogacy, with an emphasis on protecting surrogate mothers and children from exploitation.

Key Provisions

Significance of the Judgment

• Upholds Constitutional Morality:Reaffirms that legislative intent must align with constitutional values of fairness, equality, and liberty.
• Protects Reproductive Autonomy:Strengthens the legal recognition of reproductive choices as an intrinsic part of individual dignity and privacy.
• Ensures Legal Certainty:Prevents retrospective penalisation of couples who acted in good faith under the pre-existing legal framework.
• Gender Justice and Inclusivity:Acknowledges women’s agency and safeguards them from arbitrary restrictions that could hinder their reproductive timelines.
• Balances Regulation and Rights:While the State’s intent to regulate surrogacy is legitimate, the ruling ensures such regulation does not override fundamental rights or vested personal decisions.