Freezing of Embryos Marks Commencement of Surrogacy; Age Caps under the Surrogacy Act, 2021 Cannot Apply Retrospectively

Case: ARUN MUTHUVEL v. Union of India (with connected matters: WP(C) 331/2024; WP(C) 809/2024; I.A. No. 181569/2022 in WP(C) 756/2022)

Citation: 2025 INSC 1209

Court: Supreme Court of India

Date: 09 October 2025

Bench: B.V. Nagarathna, J. (author); K.V. Viswanathan, J. (concurring)

Introduction

This decision addresses a pivotal question arising under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 (the “Act”): whether the statutory upper age limits for “intending couples” (female: 23–50; male: 26–55) apply to those who had already commenced the surrogacy process before the Act came into force on 25 January 2022. The connected matters involved three sets of intending couples who, prior to the Act, had undergone assisted reproductive steps culminating in the creation and freezing of embryos but could not complete transfer to a surrogate due to intervening circumstances, including the COVID-19 pandemic.

The Union of India defended the age limits as a legislative measure grounded in medical and child-welfare rationales and argued that the transitional clause in Section 53 protected only “existing surrogate mothers.” The petitioners countered that they had begun surrogacy procedures under a legal regime with no age bar and that their decisional and reproductive autonomy under Article 21 had already been exercised—hence the age cap could not divest their accrued rights.

The Court’s answer, with far-reaching implications for transitional fairness under welfare regulation and for reproductive autonomy, is that once an intending couple had created and cryopreserved embryos prior to 25.01.2022, the surrogacy process must be treated as commenced. For such couples, the statutory age bar cannot be applied retrospectively; they remain entitled to proceed, subject to compliance with all other statutory and regulatory conditions.

Summary of the Judgment

• Non-retrospective application of age caps: Section 4(iii)(c)(I) does not operate retrospectively against intending couples who had already created and frozen embryos before 25.01.2022. Their right to proceed cannot be defeated solely on age grounds at the time of certification.
• Commencement defined: For this limited purpose, the surrogacy process is deemed to have “commenced” when the intending couple has completed extraction and fertilisation of gametes and frozen the embryos with the intention of transfer to a surrogate. Earlier steps (counselling, clinic visits, applications) are insufficient; later steps involve the surrogate (Stage B).
• Article 21 underpinning: Before the Act, reproductive autonomy included the choice to pursue surrogacy irrespective of age. That autonomy, once exercised to the stage of embryo creation and freezing, vested rights which the Act does not expressly divest.
• Transitional clause (Section 53): Protects “existing surrogate mothers” but cannot be construed to negate the non-retrospectivity principle or to divest vested rights of intending couples.
• No ruling on validity of age limits: The Court expressly refrained from adjudicating the general constitutionality or wisdom of the age caps; its holding is confined to non-retrospective application for pre-Act embryo-freeze cases.
• Relief and directions: Writ petitions and application allowed. Petitioners are exempted from age eligibility certification, provided they meet all other statutory and regulatory requirements (including Rule 14 medical indications). Similarly placed couples may approach jurisdictional High Courts for relief consistent with this ruling.

Statutory Framework and Factual Setting

• Section 4 of the Act: Regulates surrogacy and surrogacy procedures; mandates essentiality and eligibility certifications. Section 4(iii)(c)(I) prescribes age thresholds for intending couples at the certification stage.
• Rule 14, Surrogacy (Regulation) Rules, 2022: Enumerates “medical indications necessitating gestational surrogacy” (e.g., absence/abnormality of uterus, recurrent implantation failure, recurrent pregnancy loss, or life-threatening pregnancy).
• Section 53 (Transitional provision): Ten-month “gestation period” from the commencement of the Act to protect “existing surrogate mothers.”
• Stages of surrogacy (as per Union’s schematic):
  • Stage A: Initiating ART—visits, counselling, approvals, gamete extraction, fertilisation, embryo creation and freezing.
  • Stage B: Surrogate’s involvement—embryo transfer to surrogate uterus, gestation, and birth.

Precedents Cited and Their Influence

• Reproductive autonomy under Article 21:
  • Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1: Recognised women’s reproductive choices as an aspect of personal liberty, including the autonomy to carry a pregnancy and assume maternal responsibilities.
  • K.S. Puttaswamy (Privacy) (2017) 10 SCC 1: Situated reproductive choices within decisional autonomy protected by privacy.
  • X2 v. State (NCT of Delhi) (2023) 9 SCC 433; A v. State of Maharashtra (2024) 6 SCC 327: Reaffirm and expand reproductive rights, encompassing the freedom to decide whether and when to have children and to access reproductive healthcare.
  • Baby Manji Yamada v. Union of India (2008) 13 SCC 518: Detailed taxonomy of surrogacy forms and practices, setting doctrinal context.

  These authorities ground the Court’s view that, pre-Act, surrogacy fell within the protected sphere of reproductive autonomy; having been exercised to the embryo-freeze stage, that right cannot be retroactively impaired.

• Non-retrospectivity and vested rights:
  • S.L. Srinivasa Jute Twine Mills v. Union of India (2006) 2 SCC 740; K. Gopinathan Nair v. State of Kerala (1997) 10 SCC 1: Statutes are presumed prospective; absent clear intent, they cannot impair vested rights or impose new disabilities on past transactions.
  • CIT v. Vatika Township (P) Ltd. (2015) 1 SCC 1: Restates the presumption against retrospective operation unless the statute expressly or by necessary implication so provides.
  • State of Bombay v. Vishnu Ramchandra AIR 1961 SC 307; Zile Singh v. State of Haryana AIR 2004 SC 5100; Monnet Ispat & Energy Ltd. v. Union of India (2012) 11 SCC 1; Hitendra Vishnu Thakur v. State of Maharashtra AIR 1994 SC 2623: Canon of construction and fairness-based tests for retrospectivity/procedural-substantive contouring.
  • Common-law fairness line: Secretary of State for Social Security v. Tunnicliff (1991) 2 All ER 712; approved in L’Office Cherifien des Phosphates (1994) 1 All ER 20: The more unfair the retroactive effect, the clearer Parliament’s language must be.

  These fed the core holding: no express or necessary intent exists to retrospectively apply age caps; fairness militates against divesting accrued decisional autonomy in mid-course.

• “Things done” and legal consequences; preserving accrued positions:
  • Anushka Rengunthwar v. Union of India (2023) 11 SCC 209: A post-notification change restricting OCI students’ rights was read prospectively; accrued expectations and legal positions could not be retroactively defeated once life choices had been made.
  • Universal Imports Agency v. Chief Controller of Imports & Exports (1961) 1 SCR 305: Saving “things done” includes legal consequences integrally connected to pre-change acts; not merely completed acts.

  Justice Viswanathan’s concurrence draws on these to reinforce that completion of Stage A (embryo creation/freezing) triggers legal consequences that cannot be neutralised by a later statutory disability.

• Other authorities:
  • Javed v. State Of Haryana (2003) 8 SCC 369: Acknowledged legislative prerogative in social policy classification; cited by Union to support age caps generally. The Court noted this but confined itself to non-retrospectivity, not the caps’ validity.
  • High Court decisions: Mrs. D & Anr. v. Union of India (Delhi HC, 10.10.2023) and Nandini K. v. Union of India (Kerala HC, 2022): Persuasive support for prospective operation of age prescriptions in ART/surrogacy where treatment or embryo creation pre-dated the statutes.

Legal Reasoning

1) Reproductive autonomy and the pre-Act position

Before 25.01.2022, there was no binding law prescribing an upper age limit for intending couples pursuing surrogacy. The Court emphasised that reproductive autonomy under Article 21 encompassed the decision to have a child through surrogacy. Once a couple exercised that autonomy to create and freeze embryos, their right acquired a constitutional sheen and could not be extinguished retrospectively by a later statutory cap, absent clear legislative intent.

The Court also noted parity concerns: there is no age bar on natural conception or on adoption under the Hindus’ personal law (Hindu Adoptions and Maintenance Act, 1956). Using age as a threshold to deny only those who must rely on surrogacy—while leaving natural conception and adoption unbarred—could not be a basis to retroactively defeat choices already made under the prior legal regime.

2) Presumption against retrospective operation

Relying on the established canon that statutes are prospective unless a contrary intention is clear, the Court held that Section 4(iii)(c)(I) could not be read to operate retrospectively to impose an age-based disability on couples who had, under the earlier regime, completed embryo creation and freezing. Fairness considerations weighed heavily: the couples had taken bona fide steps, encountered pandemic-related impediments, and would otherwise be deprived of parenthood solely because the rules shifted midstream.

3) Defining “commencement” of surrogacy

The Union contended that only Stage B (surrogate’s involvement) marked “commencement” for transitional protection (Section 53). The Court disagreed, adopting a calibrated test tailored to the age-cap issue: commencement shall be deemed to occur once the intending couple has completed extraction and fertilisation of gametes and frozen the embryos with the intention of transfer. At that point, the couple’s part of the process is complete; all subsequent steps engage the surrogate. It is this stage that crystallises intent and produces the legal consequences to be preserved.

Earlier steps—clinic visits, counselling, applications—do not suffice; they reflect preparation, not crystallisation. Later steps involving the surrogate are covered by Section 53 for existing surrogate mothers; but the absence of a transitional clause for intending couples does not mandate retrospective prejudice to them.

4) Response to State’s child-welfare and medical-risk arguments

The Union highlighted concerns about parental age, gamete quality, and the child’s right to adequate guardianship. The Court acknowledged these as potential legislative policy considerations but found them insufficient to justify retrospective application in the absence of express intent. It refused to allow the State to pre-judge parenting capacity when, at the time choices were made and embryos created, there was no legal bar; nor is there any comparable bar on natural conception or adoption.

5) Transitional provision construed in its own sphere

Section 53’s ten-month “gestation period” protects “existing surrogate mothers.” The Court held that this clause cannot be transformed into a license to retroactively defeat intending couples’ vested positions. The transitional window operates for Stage B; it neither discloses an intent to strip couples of pre-Act rights nor justifies reading the age cap back to those who had already crossed the embryo-freeze threshold.

6) Concurring opinion: vested rights and legal liberties

Justice Viswanathan’s concurrence adds jurisprudent depth: drawing on Salmond’s distinction between vested rights, contingent rights, and mere hopes (spes), he reasons that completion of Stage A created more than a hope—it constituted vestitive facts conferring a legal position that the Act does not divest. He analogises from Anushka Rengunthwar and Universal Imports Agency to emphasise that “things done” include their legal consequences; once such consequences attached under the prior regime, a later disability should not neutralise them absent clear language.

Operative Directions and Practical Roadmap

• Who is protected? Intending couples who:
  • Commenced surrogacy before 25.01.2022; and
  • Had created and frozen embryos (i.e., completed Stage A) before that date; and
  • Were at the threshold of transfer to a surrogate (Stage B).
• Age cap inapplicable: For such couples, the age limits in Section 4(iii)(c)(I) do not bar certification.
• Other statutory conditions remain mandatory: The couples must still satisfy:
  • Rule 14 medical indications (District Medical Board “certificate of essentiality” under Section 4(iii)(a)(I));
  • Court order on parentage and custody (Section 4(iii)(a)(II));
  • Insurance coverage for the surrogate (Section 4(iii)(a)(III));
  • Surrogate’s eligibility and consent conditions (Section 4(iii)(b) and applicable Rules);
  • The altruistic surrogacy model and all prohibitions against commercialisation.
• Forum for similarly placed couples: Others with pre-Act embryo-freeze who face age-bar issues may approach jurisdictional High Courts for appropriate relief consistent with this decision.

Impact and Implications

• Transitional fairness secured: The ruling prevents the extinguishment of midstream reproductive choices made under the pre-Act regime, balancing legislative objectives with individual autonomy.
• Narrow class protected: Relief is confined to couples who had completed embryo creation and freezing before 25.01.2022. Mere initiation (counselling/clinic visits) or only gamete freezing is insufficient.
• Administrative implications:
  • Appropriate Authorities must verify documentary proof (clinic records, lab logs, cryostorage certificates) evidencing pre-Act embryo creation/freezing.
  • ART and surrogacy clinics should maintain meticulous chain-of-custody and timestamped records to facilitate certification.
• No dilution of safeguards: Medical-indication thresholds and protections for surrogate mothers and children remain fully operative; only the age bar is held non-retrospective for the defined cohort.
• Doctrinal significance beyond surrogacy: The judgment strengthens the principle that even welfare legislation must respect non-retroactivity where individuals have acted to their legal detriment based on prior law, especially when fundamental autonomy interests are at stake.
• Policy refinement: The decision may prompt regulatory guidance on evidentiary standards and timelines for pre-Act embryo storage, aligning practice with the Court’s “commencement” test.

Complex Concepts Simplified

• Prospective vs retrospective vs retroactive:
  • Prospective: Applies to future events after the law’s commencement.
  • Retrospective: Expressly applies to past events/transactions.
  • Retroactive: Not labelled as retrospective but operates to unsettle past positions or accrued rights by reference to past facts.
• Vested right vs contingent right vs hope (spes):
  • Vested right: All facts necessary to confer the right have occurred; legally complete.
  • Contingent right: Some vesting facts remain uncertain (e.g., survival conditions).
  • Hope (spes): No right has arisen; mere expectation that may never materialise.
• Stage A vs Stage B (in surrogacy):
  • Stage A: Actions by intending couple—gamete extraction, fertilisation, embryo creation and freezing.
  • Stage B: Surrogate’s involvement—embryo transfer, pregnancy, delivery.
• Eligibility vs essentiality certificates:
  • Certificate of essentiality: Medical indication for gestational surrogacy (District Medical Board).
  • Eligibility certificate: Compliance with statutory criteria for intending couples (includes age caps, except where non-retrospective ruling applies).
• Gestational surrogacy: Surrogate carries an embryo not genetically related to her; genetic material belongs to intending couple (or as permitted by law).
• Transitional provision (Section 53): Temporary protection for existing surrogate mothers for ten months from commencement, to safeguard their well-being.
• Cryopreservation: Freezing of embryos for later use; in this judgment, the act of embryo freezing before 25.01.2022 is the pivotal threshold for non-retrospective protection.

Conclusion

This landmark judgment carves out a principled and precise transitional rule: creating and freezing embryos before the Surrogacy (Regulation) Act, 2021 came into force marks the commencement of surrogacy for the limited purpose of applying the statute’s age limits. Consequently, the age caps in Section 4(iii)(c)(I) cannot retrospectively defeat the reproductive choices of intending couples who had already taken all steps within their control under a legal regime that imposed no such bar. The Court preserves the integrity of legislative objectives—particularly the protection of surrogate mothers and children—while affirming that constitutional values of decisional autonomy and fairness guard against mid-course deprivation of accrued positions. The decision offers a clear administrative roadmap, retains all substantive safeguards, and signals to courts and regulators the need to design transitional arrangements that honour both statutory purpose and individual autonomy.