New Delhi: The Supreme Court ruled on Thursday that the age restrictions under the Surrogacy Regulation Act, 2021 will not apply to couples who had frozen their embryos and initiated the surrogacy process before the law came into effect on January 25, 2022.
A bench of Justices B.V. Nagarathna and K.V. Viswanathan delivered the verdict while hearing applications filed by three couples who challenged the age bar—23 to 50 years for women and 26 to 55 years for men—under the Act. The couples argued that since their embryos were frozen long before the Act’s enforcement, the restrictions should not apply to them. Their applications were part of a broader petition filed by infertility specialist Dr. Arun Muthuvel, who has contested certain amendments to the 2021 law.
Accepting the couples’ plea, the bench observed, “If the couple has commenced the surrogacy process before January 25, 2022, and had reached the stage of embryo freezing after extraction, the age restriction under Section 4(iii)(c)(1) of the Act will not apply.” The court clarified that although only three couples had approached it, other couples in similar circumstances can move their respective High Courts to seek the same relief. However, it also emphasized that the validity of the age limits or the Act itself was not under consideration in this case.
The bench noted that before the Surrogacy Regulation Act was introduced, no such age restrictions existed, and the petitioning couples were within the lawful reproductive age at that time. Yet, due to the new provisions, they were now being denied the opportunity to become parents through surrogacy.
The Union government opposed the petitions, arguing that the age bar was introduced to protect the welfare of the child, as elderly parents might struggle to meet a child’s long-term needs. It maintained that any exemption could only apply when the embryo had already been implanted in the surrogate’s womb—not merely frozen.
Rejecting this contention, the Supreme Court held that freezing embryos constitutes a crucial stage in the surrogacy process, marking the couple’s clear intention to have a child. The bench said, “The commencement of surrogacy takes place once the couple extracts their gametes and freezes the embryo. At this stage, their intent is fully manifested, and the remaining steps only involve the surrogate mother.”
Accordingly, the court concluded that in these cases, the couples had already completed all necessary stages expected from intended parents, and thus the age restrictions should not disqualify them from proceeding with surrogacy.
