Freezing of Embryos Crystallises Right to Surrogacy: Supreme Court Strikes Down Retrospective Application of Age Bar in Surrogacy Law

"Right to Reproductive Autonomy Is Constitutionally Protected — Age Bar Cannot Extinguish Vested Rights Retrospectively" — Supreme Court Supreme Court of India, comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan, delivered a landmark judgment holding that the age restriction under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, cannot be applied retrospectively to intending couples who had already commenced surrogacy procedures before the law came into effect on January 25, 2022.

Declaring that "freezing of embryos prior to the enforcement of the Act marks the crystallisation of a couple’s right to surrogacy", the Court ruled that such couples had a “vested right” to continue the process irrespective of their age at the time of seeking certification, provided other conditions of the Act are met. The Court emphasised that any contrary interpretation would violate Article 21 of the Constitution, which guarantees the right to reproductive autonomy.

The judgment is significant as it safeguards the reproductive rights of numerous couples who began assisted reproduction before the 2022 law introduced stringent upper age limits—50 for women and 55 for men—for availing surrogacy services.

“A Law Cannot Retroactively Destroy a Right Once Validly Exercised” — Court Invokes Rule Against Retrospectivity

The Court categorically held that Section 4(iii)(c)(I), which prescribes age limits for intending couples, operates prospectively, stating:

“We hold that Section 4(iii)(c)(I) does not have retrospective operation and therefore, would not apply to the petitioners and applicants who are the intending couples.”

The Court explained that at the time the couples commenced the surrogacy process—including fertilisation and embryo freezing—there was no law placing any age restriction, and therefore, they enjoyed unrestricted constitutional liberty under Article 21 to proceed.

It observed:

“The right to surrogacy vested in intending couple Nos. 1 to 3 prior to the enforcement of the Act. It was a constitutionally recognized right which continues to be so recognized but subject to reasonable restrictions...”

Referring to established jurisprudence on retrospective application of statutes, the Court applied the rule laid down in CIT v. Vatika Township (P) Ltd. (2015) 1 SCC 1:

“Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only – nova constitutio futuris formam imponere debet, non praeteritis.”

Freezing Embryos Before the Act Is the “Point of No Return” — Surrogacy Right Becomes Vested

The Court drew a critical distinction between earlier steps such as counselling or gamete extraction, and the freezing of embryos, which it called the “crystallisation point” of reproductive intention:

“Creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples... It is the stage where nothing else remains for the couple to do themselves.”

In other words, once embryos are created and frozen, the couple’s right to proceed with surrogacy stands vested, and any subsequent change in law cannot take it away.

Justice Nagarathna explained:

“The freezing of embryos for the purpose of surrogacy is a stage at which one can say that the intending couple has taken multiple bona fide steps and had manifested their intention to pursue surrogacy.”

“Reproductive Freedom Is Part of Personal Liberty” — Court Affirms Article 21 Protection

The Court reiterated that the right to reproductive autonomy, including the choice to procreate via surrogacy, is part of the fundamental right to personal liberty under Article 21.

Relying on Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, the Court stated:

“There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.”

Justice Viswanathan, concurring with Justice Nagarathna, expanded further:

“Parenthood for the intending couple was not merely a hope or spes, but by completing the Stage ‘A’ process, certain vestitive facts did indeed crystallize… the Act does not seek to divest that.”

The Court also referenced the broader constitutional doctrine of decisional autonomy outlined in K.S. Puttaswamy v. Union of India (2017), reinforcing that choices about when and how to become parents fall squarely within the individual’s fundamental rights.

"State Cannot Question Parenting Capability After Recognising Surrogacy as a Right" — Rebutting State's Concerns

Rejecting the Union of India’s argument that older couples may not provide effective guardianship, the Court clarified:

“It is not for the State to question the couple’s ability to parent children after they had begun the exercise of surrogacy when there were no restrictions on them to do so.”

The Court noted that natural conception is not restricted by age under law, nor is adoption under personal laws, which highlights the arbitrariness of imposing retrospective age-related disqualifications on surrogacy.

Justice Nagarathna pointedly observed:

“Concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers... are not compelling reasons for retrospective application of the Act.”

“A Transitional Clause Cannot Nullify Vested Constitutional Rights” — Court Clarifies Scope of Section 53

The government had invoked Section 53 of the Act—which grants a 10-month transitional window to surrogate mothers already undergoing surrogacy—as evidence that only such cases were protected. The Court, however, decisively rejected this argument:

“The transitional provision operates in its own sphere... it does not make the Act retrospective in a manner as to divest vested rights.”

The judgment clarified that Section 53 protects the well-being of existing surrogate mothers, but does not imply that all other procedures in progress, including embryo freezing, lose protection.

International Conventions, Judicial Precedents Support Autonomy in Reproduction

The Court referred to international treaties like CEDAW (1979) and the ICPD Programme of Action (1994), both of which recognise reproductive rights as fundamental human rights.

The Bench also cited Anushka Rengunthwar v. Union of India (2023) 9 SCC 764, where it was held that policy changes affecting future eligibility must not retroactively affect rights that individuals have already begun to exercise in good faith.

“The goalpost is shifted when the game is about to be over... retroactive operation resulting in retrospective consequences should be set aside.”

Court Issues Directions to Authorities, Opens Relief to Similarly Placed Couples

The Court ruled that all three petitioners—intending couples who had completed fertilisation and freezing of embryos before January 25, 2022—are exempted from the age bar under Section 4(iii)(c)(I). The appropriate authorities were directed to issue eligibility certificates, provided the petitioners meet other conditions under the Act.

The Court also opened the door for similarly situated couples:

“If any other similarly placed intending couple has a grievance with regard to age restrictions and commencement of the surrogacy procedure prior to the enforcement of the Act... they may approach the jurisdictional High Court.”

The Supreme Court’s decision marks a pivotal moment in India’s evolving reproductive rights jurisprudence, reaffirming that once the process of surrogacy is substantially initiated under the prevailing legal framework, subsequent legislative changes cannot retrospectively deprive citizens of their fundamental freedoms.

By upholding the principle of fairness, prospective operation of law, and reproductive autonomy, the Court has provided clarity and relief to several couples caught in a legislative transition.

Date of Decision: October 9, 2025