Surrogacy Act & Age Limits: What the Latest Supreme Court Verdict Means for Prospective Parents

The Supreme Court of India has recently delivered an important judgment that directly affects couples seeking to become parents through surrogacy. In its latest ruling, the Court stated that age limits under the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively, as doing so would violate a person’s reproductive autonomy and right to life under Article 21 of the Constitution.

This decision offers relief to many couples whose surrogacy plans were suddenly disrupted by the new law and raises a larger question, how can India regulate surrogacy without restricting the fundamental right to choose parenthood?

The Case in Context

When the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 came into effect in January 2022, they set strict eligibility conditions for intending parents. One such rule fixed the age limit at 23–50 years for women and 26–55 years for men seeking to become parents through surrogacy.

However, these provisions were applied even to couples who had begun fertility treatments or had frozen embryos before the law took effect. Clinics refused to proceed with embryo transfers, citing the new restrictions.

In one such case, a couple who had stored embryos years earlier found themselves disqualified because the wife had crossed 50 by the time they applied for surrogacy approval, even though their embryos were created long before the Act came into force.

What the Supreme Court Said

The Supreme Court ruled that retrospective application of age limits is unconstitutional, holding that reproductive autonomy is an integral part of the right to life and privacy.

The Bench observed that: A woman’s reproductive autonomy includes the right to make decisions concerning procreation, including the use of assisted reproductive technologies. To deny this right retrospectively would amount to an arbitrary deprivation of choice.

The Court clarified that couples who had initiated ART or surrogacy procedures before January 25, 2022 should not be denied continuation merely due to the new age bar. It directed the concerned State and District Boards to process such applications without applying the age clause.

Why This Judgment Matters

Restores Continuity and Fairness : Couples who were midway through treatment are no longer punished for a law enacted later. It upholds the principle of legitimate expectation, that people should not be disadvantaged by sudden regulatory shifts.

Reaffirms Reproductive Autonomy : The ruling strengthens the constitutional recognition that decisions around reproduction, fertility treatments, or embryo use fall within the zone of personal liberty and dignity.

Guidance for Medical Boards and Clinics : The judgment clarifies that State and National ART/Surrogacy Boards cannot interpret laws rigidly. They must adopt a humane and rights-based approach rather than a mechanical reading of eligibility clauses.

What This Means for Couples and Clinics

For intending parents : If you began fertility treatment or embryo preservation before January 25, 2022, you can request that your case be considered under the earlier regime. The new age limits should not disqualify you.

For medical practitioners and clinics : Clinics must now review previously rejected applications and align their decisions with this ruling. Refusal based solely on post-facto age disqualification may invite legal action.

For regulatory authorities : The judgment underscores the need for transparent, uniform interpretation of ART and surrogacy laws, preventing arbitrary barriers that infringe on personal rights.

The Broader Question: Regulation vs. Reproductive Freedom

The surrogacy law was designed to protect women from exploitation and to ensure ethical medical practice, which are both essential goals. Yet, as this case shows, over-regulation can end up curtailing the very rights it aims to safeguard.

Balancing medical ethics, legal oversight, and individual choice is delicate. Each case has emotional, biological, and moral dimensions that cannot be reduced to a fixed age number.

The Supreme Court’s stance recognises this complexity — that science evolves faster than law, and legal systems must adapt to uphold dignity and fairness.

Final Words

This decision marks a progressive moment in India’s reproductive-rights landscape. It reminds both lawmakers and regulators that behind every legal clause lies a human story of hope, health, and family.

As India continues refining its surrogacy and ART frameworks, compassion and autonomy must guide enforcement, not rigidity.

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The Author :

Dr. Sunil Khattri 

sunilkhattri@gmail.com

+91 9811618704

Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.