Supreme Court of India
VIJAYA KUMARI S & ANOTHERversusUNION OF INDIA
- Citation
- 2025 INSC 1209
- Decided
- 9 October 2025
- Disposal
- Case Allowed
- Bench
- B V NAGARATHNA
Holding
Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 does not apply retrospectively and cannot be invoked against intending couples who had completed embryo freezing before the Act’s commencement.
Summary
The petitioners, three intending couples, had completed the embryo‑freezing stage of surrogacy in 2020‑2021, before the Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022. After the Act’s commencement, the statutory age limits (female ≤50, male ≤55) barred them from obtaining the eligibility certificate required to proceed with embryo transfer. They challenged the applicability of the age‑restriction provision s.4(iii)(c)(I) on the ground that it was being applied retrospectively to a right they had already vested under the pre‑Act legal regime and that it violated their reproductive‑autonomy right under Art. 21. The Court examined the meaning of “commencement” of surrogacy, held that the freezing of embryos marks the point at which the couples had manifested a bona‑fide intention, and that the Act is presumed prospective unless expressly made retrospective. Relying on principles of statutory interpretation, the doctrine of vested rights and earlier precedents, the Court concluded that the age‑restriction provision does not have retrospective effect. Consequently, the petitioners were exempted from the age‑limit requirement, subject to compliance with other conditions, and the writ petitions and related application were allowed.
Issues considered
- The applicability of Section 4(iii)(c)(I) age‑restriction of the Surrogacy (Regulation) Act, 2021 to intending couples who had frozen embryos before the Act’s commencement.
- What constitutes ‘commencement’ of the surrogacy procedure for the purpose of applying the age limits.
- Whether the Act’s transitional provision under Section 53 extends protection to intending couples.
- Whether applying the age limits retrospectively infringes the constitutional right to reproductive autonomy under Article 21.
- Whether the age‑restriction provision is valid or must be read prospectively.
Legislation cited
- Assisted Reproductive Technology (Regulation) Act, 2021
- Constitution of Indias. Article 21
- General Clauses Act, 1897
- Hindu Adoptions and Maintenance Act, 1956
- Human Fertilisation & Embryology Act, UK (1990)
- Insurance Regulatory and Development Authority Act, 1999
- Public Health Act, 1858
- Surrogacy (Regulation) Act, 2021s. 4, s. 4(iii)(c)(I), s. 53
- Surrogacy (Regulation) Rules, 2022s. 14
Headnote
Issue for Consideration Issue arose whether the age-restrictions u/s.4(iii)(c)(I) of Surrogacy (Regulation) Act, 2021 should be applied to intending couples, all of whom had commenced the surrogacy process, to the extent of having their embryos frozen, before the enforcement of Act, 2021 – s.4(iii)(c)(I) – Regulation of surrogacy and surrogacy procedures – Application of the age-restrictions on ‘intending couples’ u/s.4(iii)(c)(I) who had frozen their embryos, before the enforcement of the Act – Act of 2021 Act came into force
Subjects
SurrogacyEmbryos frozen before enforcement of the ActOperation of statuteUpper age limit for intending coupleDominant intention of the LegislatureRetrospective applicationAutonomous decisions regarding age and surrogacySurrogate motherConstitutional right to surrogacyAge‑restrictions s.4(iii)(c)(I) Surrogacy (Regulation) Act, 2021Intending couplesSurrogacy processApplication of age‑restrictions on intending couplesFreezing of embryosAge‑related restrictionsStage of creation of embryos and freezing after extraction of gametesReproductive autonomy and parenthoodRight to surrogacy as a facet of autonomy under Art.21Commencement of surrogacy procedureStatutory interpretation of Surrogacy (Regulation) Act, 2021Concept of surrogacy and its development in IndiaSurrogacy as an exercise of reproductive autonomy
Judgment
[2025] 11 S.C.R. 136 : 2025 INSC 1209
Vijaya Kumari S & Another
v.
Union of India
(Writ Petition (Civil) No. 331 of 2024)
09 October 2025
[B.V. Nagarathna* and K.V. Viswanathan,* JJ.]
Issue for Consideration
Issue arose whether the age-restrictions u/s.4(iii)(c)(I) of Surrogacy
(Regulation) Act, 2021 should be applied to intending couples, all
of whom had commenced the surrogacy process, to the extent of
having their embryos frozen, before the enforcement of the Act.
Headnotes†
Surrogacy (Regulation) Act, 2021 – s.4(iii)(c)(I) – Regulation
of surrogacy and surrogacy procedures – Application of the
age-restrictions on ‘intending couples’ u/s.4(iii)(c)(I) who had
frozen their embryos, before the enforcement of the Act – Act
of 2021 Act came into force wef 25.01.2022, whereby the upper
age limit fixed for the intending couple by s.4(iii)(c)(I), the female
cannot be over and above 50 years of age and the male cannot
be over and above 55 years of age – Petitioners-intending
couples had commenced the surrogacy procedures-completed
the Stage A process (freezing of embryos) prior to the date
of enforcement of the Act – However, the Act brought in an
embargo in the form of the age-limit and petitioners barred from
continuing the surrogacy procedure post the enforcement of
the Act – Age-related restrictions, if applicable retrospectively
to the petitioners-intending couples availing surrogacy:
Held: If an intending couple had commenced the surrogacy
procedure prior to the commencement of the Act i.e., 25.01.2022;
and were at the stage of creation of embryos and freezing after
extraction of gametes; and on the threshold of transfer of embryos
to the uterus of the surrogate mother, the age restriction u/s.4(iii)(c)
(I) would not apply – Competent authority, on being satisfied about
the said conditions shall issue the certification provided r.14 of the
Rules are satisfied by the intending couples – Thus, s.4(iii)(c)(I)
* Author
[2025] 11 S.C.R. 137
Vijaya Kumari S & Another v. Union of India
does not have retrospective operation and would not apply to the
petitioners-intending couples – At the time the intending couples
generated and froze their embryos, they had qualified for surrogacy
under the prevailing law, thus, they came to possess a right to
surrogacy as a part of reproductive autonomy and parenthood –
Before the enforcement of the Act-25.01.2022, there were no binding
laws, certifications, etc. regarding age restrictions on intending
couples-petitioners wishing to avail surrogacy – Thus, for couples
the (statutory) age limits under the Act, the right to access surrogacy
or their entitlement to surrogacy was not conditional on their age
and was freely available to couples under the prevailing law – Right
to surrogacy as a facet of autonomy u/Art.21 was unrestricted prior
to the enforcement of the Act – Right to decide that despite one’s
age, one wishes to have children through surrogacy, was afforded
to intending couples u/Art.21 prior to the enforcement of the Act –
Intending couples commenced the process of surrogacy, to the
extent of freezing their embryos in preparation for transfer to the
womb of the surrogate mother – It cannot be said that intending
couples, who are above the prescribed age-limits under the Act,
will not be able to effectively parent their children – 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 – For intending couples who undertook surrogacy
procedures prior to the Act, age-related considerations were entirely
their prerogative and an exercise of their rights u/Art.21 – Since
there is no manifest intention in the provisions of the Act to apply
the age-limits retrospectively, the same is not permissible – Right
to surrogacy vested in intending couples prior to the enforcement
of the Act, was a constitutionally recognized right which continues
to be so recognized but subject to reasonable restrictions with a
view to obviate exploitation of surrogate mothers through a process
of commercial surrogacy – Thus, such a constitutional right cannot
be taken away retrospectively from them on account of their age,
without an express intention to do so under the Act – Constitution
of India – Art.21. [Paras 13, 13.9, 13.13, 16]
Per K.V. Viswanathan, J. (Concurring): At a time when there
was no disability attached, the petitioners exercised the liberty
that inhered in them and certain rights accrued to them once they
finished the Stage A process (freezing of embryos) – It is at this
stage that the Act stepped in and in s.4(iii)(c)(I) created a disability
for them by prescribing that unless the intending couple are married
138 [2025] 11 S.C.R.
Supreme Court Reports
and between the age of 23-50 years in case of female and 26-55
years in case of male on the day of certification, eligibility certificate
for initiating, performing, undertaking or conducting surrogacy or
surrogacy procedure shall not be issued – 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
and thus, the Act, does not seek to divest that – Submission that
the Act provides a transitional provision and only cases covered
under the transitional provision could be protected cannot be
accepted – Transitional provision operates in its own sphere –
This provision cannot be construed as a free license under the
Act to divest vested right – This provision does not make the Act
retrospective in a manner as to divest vested rights – Vested rights
are not divested, and the new disability created will not apply
to petitioners (intending couples), and their rights do not stand
neutralised. [Paras 7, 9, 11, 12]
Surrogacy (Regulation) Act, 2021 – s.4(iii)(c)(I) – ‘Commencement’
of surrogacy procedure – When can it be said that couples have
‘commenced’ the process of surrogacy before the enforcement
of the Act, and hence may be allowed to continue despite the
subsequent age-limits:
Held: ‘Commencement’ of the surrogacy process for the limited
purpose of determining when the age-limits under the Act must be
applied prospectively and not retrospectively takes place after the
intending couple has completed the extraction and fertilisation of
gametes and has frozen the embryo with an intention to and for the
purposes of, transfer to the womb of the surrogate mother – There is
no additional step to be undertaken by the couple themselves – All
subsequent steps would involve only the surrogate mother – There
is nothing else for the couple to do by themselves, that would
strengthen the manifestation of their intention to pursue surrogacy –
Thus, the freezing of embryos 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. [Para 14.3]
Surrogacy (Regulation) Act, 2021 – Statutory interpretation –
Operation of statue, retrospective in nature so as to encompass
intending couples, or the mandatory requirements under
the Act would only apply prospectively from the date of the
enforcement of the Act-when the surrogacy procedure is
commenced on or after 25.01.2022:
[2025] 11 S.C.R. 139
Vijaya Kumari S & Another v. Union of India
Held: In order to determine if a particular statute applies
prospectively or retrospectively, the real issue in each case is
as to the dominant intention of the Legislature to be gathered
from the language used, the object indicated, the nature of rights
affected, and the circumstances under which the statute is passed –
Applying the said principles, if the intending couple had attained
the age of 50 and 55 years prior to the coming into force of the
Act and had also commenced the surrogacy procedure would
the certification be denied to them after the coming into force of
the Act, conversely, if the intending couple were within the age
limits when they commenced the surrogacy procedure and on
the date of certification sought under the Act had overreached
the age limits will the certificate be denied to them, in both of
the situations the provision cannot apply retrospectively so as to
deny the certification to the intending couples on the premise that
on the date of issuance of certification they had crossed the age
bar – There was no age restriction when the intending couples
commenced the surrogacy procedure, the Act has been enforced
when the intending couple were in the midst of the procedure, at
the stage of creation of embryos and freezing the same – This
was a sufficient manifestation of their intention – Next step was to
transfer the frozen embryos to the uterus of the surrogate mother,
at that stage the age bar under the Act comes into play – Intending
couples have a constitutional right which was unfettered when they
commenced the process of surrogacy – Same can be curtailed only
by reasonable restrictions and by not interpreting the Act unfairly,
so as to completely curtail their constitutional right to surrogacy
which was unfettered by the Act not giving a retrospective or even
a retroactive effect to the Act – Thus, when there was no age
restriction at the stage of creation of embryos and freezing them
i.e., prior to the enforcement of the Act, when the intending couples
are at the threshold of Stage B-transfer of embryos to the uterus
of the surrogate mother, the age restriction under the Act cannot
be permitted to operate retrospectively on such intending couples
so as to frustrate not just the surrogacy procedure but also their
right to have a surrogate child or become parents, the latter being
a constitutional right u/Art.21 of the Constitution. [Paras 15.8, 15.9]
Surrogacy – Concept of surrogacy and its development in
India – Surrogacy as an exercise of reproductive autonomy –
Explained. [Paras 11, 12]
140 [2025] 11 S.C.R.
Supreme Court Reports
Case Law Cited
In the judgment of Nagarathna, J.
K.S. Puttaswamy (Privacy-9J.) v. Union of India [2017] 10 SCR
569 : (2017) 10 SCC 1 – followed.
X2 v. State (NCT of Delhi) (2023) 9 SCC 433; Baby Manji Yamada v.
Union of India [2008] 13 SCR 1126 : (2008) 13 SCC 518; Suchita
Srivastava v. Chandigarh Admn. [2009] 13 SCR 989 : (2009) 9
SCC 1; R. Rajagopal v. State of T.N. [1994] Supp. 4 SCR 353 :
(1994) 6 SCC 632; A v. State of Maharashtra [2024] 5 SCR
470 : (2024) 6 SCC 327; Arun Muthuvel v. Union of India and
Ors., WP (Civil) No. 756 of 2022; Mrs. D and Anr. v. Union of
India and Anr., (Writ Petition (Civil) No.12395/2023); Anushka
Rengunthwar v. Union of India [2023] 5 SCR 243 : (2023) 11 SCC
209; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India [2006]
2 SCR 235 : (2006) 2 SCC 740; K. Gopinathan Nair v. State of
Kerala [1997] 3 SCR 226 : (1997) 10 SCC 1 – relied on.
CIT v. Vatika Township (P) Ltd. [2014] 12 SCR 1037 : (2015)
1 SCC 1; Mrs. D & Anr. v. Union of India & Anr., W.P.(C)
No.12395/2023; Javed v. State of Haryana [2003] Supp. 1 SCR
947 : (2003) 8 SCC 369; Hitendra Vishnu Thakur v. State of
Maharashtra [1994] Supp. 1 SCR 360 : AIR 1994 SC 2623; State
of Bombay v. Vishnu Ramchandra [1961] SCR 26 : AIR 1961 SC
307; Zile Singh v. State of Haryana [2004] Supp. 5 SCR 272 :
AIR 2004 SC 5100; Monnet Ispat & Energy Ltd. v. Union of India
[2012] 7 SCR 644 : (2012) 11 SCC 1 – referred to.
Nandini K. v. Union of India, 2022 SCC OnLine Ker 8235 –
referred to.
Maxwell v. Murphy, (1957) 96 CLR 261, page No. 267; Secretary of
State for Social Security v. Tunnicliff, (1991) 2 All ER 712; L’office
Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co.
Ltd., (1994) 1 All ER 20 – referred to.
In the judgment of K.V. Viswanathan, J.
Anushka Rengunthwar v. Union of India [2023] 5 SCR 243 :
(2023) 11 SCC 209; M/s Universal Imports Agency v. The Chief
Controller of Imports and Exports [1961] 1 SCR 305 : 1960 SCC
OnLine SC 42 – relied on.
Mrs. D and Anr. v. Union of India and Anr, Writ Petition (Civil)
No.12395/2023 – referred to.
[2025] 11 S.C.R. 141
Vijaya Kumari S & Another v. Union of India
Books and Periodicals Cited
G.P. Singh’s Principles of Statutory Interpretation, 15th Edition;
Law Commission of India, 228th report; National Guidelines for
Accreditation, Supervision and Regulation of ART Clinic in India;
Salmond on Jurisprudence, Twelfth Edition by P. J. Fitzgerald –
referred to.
List of Acts
Surrogacy (Regulation) Rules, 2022; Constitution of India; Surrogacy
(Regulation) Act, 2021; Assisted Reproductive Technology
(Regulation) Act, 2021; Hindu Adoptions and Maintenance Act,
1956; Human Fertilization & Embryology Act, UK (1990).
List of Keywords
Surrogacy; Embryos frozen, before the enforcement of the Act;
Operation of statue; Upper age limit fixed for the intending couple;
Dominant intention of the Legislature; Retrospective; Act shall
apply retrospectively; Autonomous decisions regarding the age
at which one wished to pursue surrogacy; Surrogate mother;
Constitutional right to surrogacy; Age-restrictions u/s.4(iii)(c)(I) of
Surrogacy (Regulation) Act, 2021; Intending couples; Surrogacy
process; Regulation of surrogacy and surrogacy procedures;
Application of the age-restrictions on ‘intending couples’; Freezing
of embryos; Age-related restrictions; Stage of creation of embryos
and freezing after extraction of gametes; Reproductive autonomy
and parenthood; Right to surrogacy as a facet of autonomy u/Art.21;
‘Commencement’ of surrogacy procedure; Statutory interpretation
of Surrogacy (Regulation) Act, 2021; Concept of surrogacy and its
development in India; Surrogacy as an exercise of reproductive
autonomy.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 331
of 2024
Under Article 32 of The Constitution of India
With
Writ Petition (Civil) No. 809 of 2024 And I.A. No. 181569 of 2022
in Writ Petition (Civil) No. 756 of 2022
142 [2025] 11 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioners:
Ms. Pinky Anand, Shikhil Shiv Suri, Sr. Advs., Mayank Pandey,
Ashish Kumar Pandey, Nalin Tripathi, Nishank Tripathi, Nischal
Tripathi, Ms. Neelam Singh, Kailashi Uday Kapoor, Akshat
Srivastava, M/s Radiam Law, Ms. Mohini Priya, Ms. Saudamini
Sharma, Ms. Sayesha Gambhir, Samrat Pasriccha, Ms. Nayoleeka
Purty, Ms. Chanya Jaitely, Malak Manish Bhatt, Shyamal Kumar,
Mrs. Madhu Suri, Ms. Jyoti Suri, Ms. Wamika Chadha, Ms. Ishita
Ahuja, Vibhor Choudhary, Ms. Manek Kalyaniwalla, Ms. Divya
Swami, Viresh B. Saharya, Ms. Radhika Thapar Behl, Akshat
Agarwal, Rishabh Sahai Mathur.
Advs. for the Respondent:
Ms. Aishwarya Bhati, A.S.G., Trideep Pais, Sr. Adv., Amrish
Kumar, Gurmeet Singh Makker, Sudarshan Lamba, Rajat Nair,
Ms. Chitrangda Rashtrawara, Ketan Paul, Krishna Kant Dubey,
Mayank Pandey, Aaditya Dixit, Ms. Riddhi Jad, Ms. Shivika Mehra,
Ms. Shreya Munoth, Gautam Bhatia, Ms. Sitamsini Cherukumalli,
Ms. Saloni Ambastha, Ms. Sakshi Jain, Ms. Ameyavikrama
Thanvi, Ivan, Ms. Manjeet Kirpal, Kumar Dushyant Singh,
Ms. Fauzia Shakil,Vishal Navale, Ms. Ananya Arora, Varun
Khetwani, Ms. Shreya Gupta, Ms. Anita Bafna, Deepin Deepak
Sahni, Kks Krishnaraj, Mayilsamy K, Naijal Kumar P, Ms. Dj Millo,
Str Ajay Sharma, Thomas Oommen, Ravindra Sadanand Chingale,
Nandita Rao, Neelam Goswami, Jai Shankar, Sanjeev Gupta,
Ms. Nandini Rao.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
These two writ petitions and one interlocutory application arise out
of a set of similar but slightly differentiated facts. The common legal
question arising out of them is the application of the age-restrictions
on ‘intending couples’ under Section 4(iii)(c)(I) of the Surrogacy
(Regulation) Act, 2021 (hereinafter referred to as “the Act” for the
sake of brevity).
[2025] 11 S.C.R. 143
Vijaya Kumari S & Another v. Union of India
2. The Act came into force with effect from 25.01.2022. The objects of
the Act are the regulation of the practice and process of surrogacy
and for matters connected therewith or incidental thereto. The relevant
definitions of the Act read as under:
“2. Definitions. — (1) In this Act, unless the context
otherwise requires,—
xxx
(b) “altruistic surrogacy” means the surrogacy in which
no charges, expenses, fees, remuneration or monetary
incentive of whatever nature, except the medical
expenses and such other prescribed expenses incurred
on surrogate mother and the insurance coverage for the
surrogate mother, are given to the surrogate mother or
her dependents or her representative;
(c) “appropriate authority” means the appropriate authority
appointed under Section 35;
xxx
(g) “commercial surrogacy” means commercialisation of
surrogacy services or procedures or its component services
or component procedures including selling or buying
of human embryo or trading in the sale or purchase of
human embryo or gametes or selling or buying or trading
the services of surrogate motherhood by way of giving
payment, reward, benefit, fees, remuneration or monetary
incentive in cash or kind, to the surrogate mother or her
dependents or her representative, except the medical
expenses and such other prescribed expenses incurred
on the surrogate mother and the insurance coverage for
the surrogate mother;
(h) “couple” means the legally married Indian man
and woman above the age of 21 years and 18 years
respectively;
(i) “egg” includes the female gamete;
(j) “embryo” means a developing or developed organism
after fertilisation till the end of fifty-six days;
xxx
144 [2025] 11 S.C.R.
Supreme Court Reports
(l) “fertilisation” means the penetration of the ovum by the
spermatozoan and fusion of genetic materials resulting in
the development of a zygote;
(m) “foetus” means a human organism during the period
of its development beginning on the fifty-seventh day
following fertilisation or creation (excluding any time in
which its development has been suspended) and ending
at the birth;
(n) “gamete” means sperm and oocyte;
xxx
(r) “intending couple” means a couple who have a medical
indication necessitating gestational surrogacy and who
intend to become parents through surrogacy;
xxx
(v) “oocyte” means naturally ovulating oocyte in the female
genetic tract;
xxx
(zd) “surrogacy” means a practice whereby one woman
bears and gives birth to a child for an intending couple with
the intention of handing over such child to the intending
couple after the birth
xxx
(zf) “surrogacy procedures” means all gynaecological,
obstetrical or medical procedures, techniques, tests,
practices or services involving handling of human gametes
and human embryo in surrogacy;
(zg) “surrogate mother” means a woman who agrees to
bear a child (who is genetically related to the intending
couple or intending woman) through surrogacy from
the implantation of embryo in her womb and fulfils the
conditions as provided in sub-clause (b) of clause (iii) of
Section 4;
(zh) “zygote” means the fertilised oocyte prior to the first
cell division.
[2025] 11 S.C.R. 145
Vijaya Kumari S & Another v. Union of India
(2) Words and expressions used herein and not defined
in this Act but defined in the Assisted Reproductive
Technology Act shall have the meanings respectively
assigned to them in that Act.”
2.1 Section 3 speaks of prohibition and regulation of surrogacy
clinics, while Section 4 deals with regulation of surrogacy
and surrogacy procedures. The expressions “surrogacy” and
“surrogacy procedures” are defined in clauses (zd) and (zf)
respectively of sub-section (1) of Section 2 of the Act. Sections 4
and 53 read as under:
“4. Regulation of surrogacy and surrogacy
procedures.— On and from the date of commencement
of this Act, —
(i) no place including a surrogacy clinic shall be
used or cause to be used by any person for
conducting surrogacy or surrogacy procedures,
except for the purposes specified in clause (ii)
and after satisfying all the conditions specified
in clause (iii);
(ii) no surrogacy or surrogacy procedures shall be
conducted, undertaken, performed or availed
of, except for the following purposes, namely:
(a) when an intending couple has a medical
indication necessitating gestational
surrogacy:
Provided that a couple of Indian origin
or an intending woman who intends to
avail surrogacy, shall obtain a certificate
of recommendation from the Board on
an application made by the said persons
in such form and manner as may be
prescribed.
Explanation.—For the purposes of this
sub-clause and item (I) of sub-clause (a)
of clause (iii) the expression “gestational
surrogacy” means a practice whereby a
surrogate mother carries a child for the
146 [2025] 11 S.C.R.
Supreme Court Reports
intending couple through implantation of
embryo in her womb and the child is not
genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy
purposes;
(c) when it is not for commercial purposes
or for commercialisation of surrogacy or
surrogacy procedures;
(d) when it is not for producing children for
sale, prostitution or any other form of
exploitation; and
(e) any other condition or disease as may
be specified by regulations made by the
Board;
(iii) no surrogacy or surrogacy procedures shall be
conducted, undertaken, performed or initiated,
unless the Director or in-charge of the surrogacy
clinic and the person qualified to do so are
satisfied, for reasons to be recorded in writing,
that the following conditions have been fulfilled,
namely:—
(a) the intending couple is in possession
of a certificate of essentiality issued by
the appropriate authority, after satisfying
itself, for the reasons to be recorded in
writing, about the fulfilment of the following
conditions, namely: —
(I) a certificate of a medical indication
in favour of either or both members
of the intending couple or intending
woman necessitating gestational
surrogacy from a District Medical
Board.
Explanation.—For the purposes of
this item, the expression “District
Medical Board” means a medical
[2025] 11 S.C.R. 147
Vijaya Kumari S & Another v. Union of India
board under the Chairpersonship of
Chief Medical Officer or Chief Civil
Surgeon or Joint Director of Health
Services of the district and comprising
of at least two other specialists,
namely, the chief gynaecologist or
obstetrician and chief paediatrician
of the district;
(II) an order concerning the parentage and
custody of the child to be born through
surrogacy, has been passed by a court
of the Magistrate of the first class or
above on an application made by
the intending couple or the intending
woman and the surrogate mother,
which shall be the birth affidavit after
the surrogate child is born; and
(III) an insurance coverage of such
amount and in such manner as may be
prescribed in favour of the surrogate
mother for a period of thirty-six
months covering postpartum delivery
complications from an insurance
company or an agent recognised
by the Insurance Regulatory and
Development Authority established
under the Insurance Regulatory and
Development Authority Act, 1999 (41
of 1999);
(b) the surrogate mother is in possession
of an eligibility certificate issued by the
appropriate authority on fulfilment of the
following conditions, namely: —
(I) no woman, other than an ever married
woman having a child of her own and
between the age of 25 to 35 years
on the day of implantation, shall be a
surrogate mother or help in surrogacy
148 [2025] 11 S.C.R.
Supreme Court Reports
by donating her egg or oocyte or
otherwise;
(II) a willing woman shall act as a
surrogate mother and be permitted
to undergo surrogacy procedures as
per the provisions of this Act:
Provided that the intending couple or
the intending woman shall approach
the appropriate authority with a
willing woman who agrees to act as
a surrogate mother;
(III) no woman shall act as a surrogate
mother by providing her own gametes;
(IV) no woman shall act as a surrogate
mother more than once in her lifetime:
Provided that the number of attempts
for surrogacy procedures on the
surrogate mother shall be such as
may be prescribed; and
(V) a c e r t i f i c a t e o f m e d i c a l a n d
psychological fitness for surrogacy
and surrogacy procedures from a
registered medical practitioner;
(c) an eligibility certificate for intending couple
is issued separately by the appropriate
authority on fulfilment of the following
conditions, namely:--
(I) the intending couple are married and
between the age of 23 to 50 years
in case of female and between 26 to
55 years in case of male on the day
of certification;
(II) the intending couple have not had any
surviving child biologically or through
adoption or through surrogacy earlier:
[2025] 11 S.C.R. 149
Vijaya Kumari S & Another v. Union of India
Provided that nothing contained in
this item shall affect the intending
couple who have a child and who is
mentally or physically challenged or
suffers from life threatening disorder
or fatal illness with no permanent
cure and approved by the appropriate
authority with due medical certificate
from a District Medical Board; and
(III) such other conditions as may be
specified by the regulations.
xxx
53. Transitional provision.— Subject to the
provisions of this Act, there shall be provided a
gestation period of ten months from the date of coming
into force of this Act to existing surrogate mothers’
to protect their well being.”
3. Presently, we are concerned with Section 4(iii)(c)(I). The same
states that on and from the date of commencement of the Act, i.e.,
25.01.2022, an intending couple requires an ‘eligibility certificate’
issued by the appropriate authority certifying that the intending
couple are married and between the age of 23 to 50 years in case
of the female and between 26 to 55 years in case of the male on
the day of certification. The appropriate authority under Section 36
of the Act has to consider and grant or reject any application under
clause (vi) of Section 3 and sub-clauses (a) to (c) of clause (iii) of
Section 4 within a period of ninety days which also includes the
power to issue eligibility certificate.
3.1 The common grievance of the petitioners and applicants herein is
with regard to the upper age limit fixed for the intending couple,
inasmuch as the female cannot be over and above 50 years of
age and the male cannot be over and above 55 years of age.
4. In Writ Petition (Civil) No.331 of 2024, petitioner No.1 is the wife, and
petitioner No.2 is the husband (hereinafter referred to collectively
as ‘intending couple No.1’). In 2019, they were married under the
Hindu Marriage Act, 1955. This was the second marriage for both
the petitioners. Petitioner No.1 has one daughter from her previous
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marriage, and petitioner No.2 has two daughters from his previous
marriage. All three children have attained adulthood and are living
abroad.
4.1 The petitioners do not have children (biological, adopted or
surrogate) together. Consequently, in 2020, they began IVF
treatment to conceive a child. However, the couple was advised
to opt for conceiving a child through surrogacy due to petitioner
No.1’s advanced age, excessive bleeding during previous
pregnancies and other issues.
4.2 On 28.08.2020, the first attempt at ‘egg retrieval’ (the process
by which eggs are collected from a woman’s ovaries) from
petitioner No.1 failed due to her age. On 30.10.2020, she was
diagnosed with ovarian cysts. The petitioners subsequently
approached Iswarya Fertility Centre, Chennai, where two eggs
were successfully retrieved on 26.01.2021 and the embryos
were frozen in preparation for transfer into a surrogate womb.
4.3 However, the petitioners contend that the process of transferring
the embryo into the surrogate womb was stalled due to
unforeseeable circumstances beyond their control, i.e., the
outbreak of the COVID-19 pandemic. Thereafter, on 25.01.2022,
the Act came into effect and on 21.06.2022, the Surrogacy
(Regulation) Rules, 2022 (for short, “Rules”) were promulgated.
4.4 On 03.02.2024, the petitioners took a second opinion from
Iswarya Fertility Centre, Chennai, whose report opined that the
couple needs surrogacy, in view of the risks during delivery and
pregnancy experienced by petitioner No.1 in the past. However,
it also noted that “the law does not permit surrogacy in view of
age”. Therefore, aggrieved, intending couple No.1 has preferred
this writ petition, challenging the propriety of the age-restrictions
under the Act, and also contending that they had commenced
surrogacy procedures before the enforcement of the Act.
5. In Writ Petition (Civil) No.809 of 2024, petitioner No.1 is the wife, and
petitioner No.2 is the husband (hereinafter referred to collectively
as ‘intending couple No.2’). They were married on 07.02.2011 and
registered their marriage under the Special Marriage Act, 1954.
Intending couple No.2 submitted that they have been unable to
conceive a child naturally with multiple unsuccessful attempts at
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Vijaya Kumari S & Another v. Union of India
frozen embryo transfer between the years 2012 and 2018. Intending
couple No.2 submitted that in the year 2019, two embryos were
made at the Southern Cross Fertility Centre, Mumbai, but the onset
of the COVID-19 pandemic in 2020 prevented the continuation of
the process of surrogacy.
5.1 In 2022, the Act and the Rules were enforced, following which,
the petitioners became ineligible for surrogacy procedures. This
is because at the time of enforcement of the Act and Rules,
petitioner No.2 had crossed the age limit of 55 years prescribed
for males under the Act. As on the date that the Writ Petition
was filed, i.e., 21.10.2024, petitioner No.2 was 58 years old.
Therefore, the intending couple No.2 has preferred this writ
petition, contending that they have demonstrated a bona fide
intent to avail the option of surrogacy through multiple aborted
and failed attempts over the years. Further, they submitted that if
they had anticipated the stringent age-related criteria under the
Act, they would have availed the surrogacy option well in time.
6. The applicants in I.A. No.181569 of 2022 are hereinafter collectively
referred to as ‘intending couple No.3’. As on date of the application,
i.e., 23.11.2022, the applicant-husband was about 62 years old and
the applicant-wife was about 56 years old. Intending couple No.3 lost
their only child in 2018. Although they desired to conceive a child
naturally again, they were advised to opt for In-Vitro Fertilisation
(IVF) due to their advanced age.
6.1 In May 2019, the applicant-wife underwent an examination, and
was deemed fit to bear an embryo with donor oocytes. However,
due to the presence of fibroids in her uterus, it was advised
that IVF be pursued with donor eggs. The applicant-wife then
underwent Myomectomy Laparoscopic Surgery on 22.11.2019
and was nonetheless deemed fit to bear an embryo.
6.2 Intending couple No.3 submitted that the process was
subsequently put on hold due to the COVID-19 pandemic,
during which the applicant wife developed hypertension, due
to which, the couple received medical advice that surrogacy
was the advisable course of action. Having decided to transfer
the embryo to the surrogate by April 2021, the applicants
submitted that this process was further delayed by the second
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wave of the pandemic. Subsequently, although an embryo was
successfully transferred to a surrogate mother in January 2022,
the surrogate mother suffered a miscarriage and the pregnancy
was not successful.
6.3 Thereafter, the Act and the Rules were enforced and intending
couple No.3 has been rendered ineligible for undergoing
surrogacy procedures since both applicant-wife and husband
are above the age-limit of 50 years and 55 years respectively.
Therefore, intending couple No.3 has preferred this application in
W.P. (C) No.756/2022, contending that they had already begun
the process of conducting medical procedures for the transfer
of embryos to an identified surrogate mother. When they began
such procedures, they were well within the ambit of the then
prevailing law. It is only subsequently that they have been barred
by the Act. Intending couple No.3 submitted that as on date, the
embryos are ready to be transferred to the surrogate mother.
Submissions:
7. We have heard learned senior counsel, Ms. Pinky Anand and
Ms. Mohini Priya, learned counsel for intending couple No.1,
Mr. Shikhil Shiv Suri, learned senior counsel for intending couple
No.2 and Mr. Ivan, learned counsel for intending couple No.3 and
learned Additional Solicitor General (ASG) Ms. Aishwarya Bhati for
respondent-Union of India and perused the material on record.
7.1 Learned senior counsel for intending couple No.1 submitted
as follows:
7.1.1 The provisions of the Act cannot be applied retrospectively
to intending couples who had started surrogacy
procedures much prior to its enforcement. In support of
this contention, the judgement of a five-judge bench of
this Court in CIT vs. Vatika Township (P) Ltd., (2015)
1 SCC 1 was relied on, the relevant portion of which is
produced below:
“28. Of the various rules guiding how a legislation
has to be interpreted, one established rule is
that unless a contrary intention appears, a
legislation is presumed not to be intended to
have a retrospective operation. The idea behind
the rule is that a current law should govern
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Vijaya Kumari S & Another v. Union of India
current activities. Law passed today cannot
apply to the events of the past.”
7.1.2 In this case, the intending couple began their surrogacy
procedures in January 2021 by freezing their embryos.
When this process of freezing was begun, it was
completely within the ambit of the then-prevailing law,
which prescribed no upper age limit for either a man or
woman to avail of surrogacy.
7.1.3 On a broader level, it was submitted that the fixation of an
upper age-limit lacks rationale or justifiable basis, since
the physical, emotional and financial capability to raise
a child are not merely a function of age alone. Further,
the imposition of an age cap on intending couples has no
nexus with the core concerns of the Act, namely protecting
surrogate mothers from exploitation and helping infertile
parents bear children.
7.1.4 From a constitutional perspective, it was submitted that
the upper age-limit falls foul of the right to reproductive
autonomy under Article 21 of the Constitution. This
right enables a woman to make autonomous decisions
regarding, if, when, and in what manner to have children.
Our attention was drawn to the following extract from the
decision of this Court in X2 vs. State (NCT of Delhi),
(2023) 9 SCC 433 (“X2 vs. State”):
“101. The ambit of reproductive rights is not
restricted to the right of women to have or not
have children. It also includes the constellation of
freedoms and entitlements that enable a woman
to decide freely on all matters relating to her
sexual and reproductive health. Reproductive
rights include the right to access education
and information about contraception and sexual
health, the right to decide whether and what type
of contraceptives to use, the right to choose
whether and when to have children, the right
to choose the number of children, the right to
access safe and legal abortions, and the right to
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reproductive healthcare. Women must also have
the autonomy to make decisions concerning
these rights, free from coercion or violence.”
7.1.5 In light of this decision, it was submitted that the age-
restrictions under the Act run contrary to the constitutional
right afforded to women to make unhindered decisions
regarding their reproductive choices.
7.1.6 Further, it was submitted that the principle of ‘transformative
constitutionalism’ supports the view that laws regulating
new methods of family planning and childbearing, such
as the Act, must align and support such societal shifts
and therefore must not impose undue legal or regulatory
burdens.
7.1.7 Learned counsel also submitted examples of international
conventions and treaties to which India is a signatory
that enshrine the right to parenthood. The Convention
on Elimination of All Forms of Discrimination Against
Women (CEDAW), 1979 (ratified by India in the year
1993) recognises a woman’s right to freely make decisions
on having children and access reproductive health
services. The International Conference on Population and
Development (ICPD) Programme of Action, adopted in
1994 with India as a signatory, recognises reproductive
rights and the importance of reproductive health services.
7.1.8 Therefore, intending couple No.1 have prayed that
the fixation of an upper-age limit for intending couples
availing surrogacy be struck down/read down. Further,
they submitted that they were subject to exceptional
and unforeseeable circumstances and hence pray that
directions be issued to the National Board to allow them
to proceed with surrogacy using their embryos frozen in
the year 2021, i.e., prior to the coming into force the Act.
7.1.9 The right to access surrogacy procedures being a right
that vested with couples that began procedures prior to
the enforcement of the Act, cannot be taken away by a
subsequent law, is a contention that was also advanced
by learned senior counsel for intending couple No.1. In
this regard, our attention was drawn to a judgement of
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Vijaya Kumari S & Another v. Union of India
this Court in S.L. Srinivasa Jute Twine Mills (P) Ltd. vs.
Union of India, (2006) 2 SCC 740 (“S.L. Srinivasa Jute
Twine Mills”).
7.1.10 Therefore, it was submitted that the language of Act does
not specifically manifest its intention to apply the age-
related restrictions retrospectively to intending couples
who had begun the procedure for surrogacy prior to
the enforcement of the Act. Hence, it cannot affect the
vested right afforded to the petitioners to continue the
surrogacy process that they had lawfully begun under
the pre-existing legal regime.
7.1.11 Similarly, learned senior counsel for intending couple
No.1 also drew our attention to the view of this Court
in K. Gopinathan Nair vs. State of Kerala, (1997)
10 SCC 1 (“Gopinathan Nair”), wherein the majority
observed that “it is now well settled that where a statutory
provision which is not expressly made retrospective
by the legislature seeks to affect vested rights and
corresponding obligations of parties, such provision
cannot be said to have any retrospective effect by
necessary implication.”
7.2 Learned counsel for intending couple No.2 submitted as follows:
The Act is a welfare legislation enacted to benefit couples bereft
of the ability to conceive children naturally. However, the age-
limits in Section 4(iii)(c)(I) bar couples who have unknowingly
and due to bona fide reasons, crossed the thresholds. Petitioner
No.1 (the wife) suffered repeated spontaneous abortions which
demonstrates the bona fide reason and necessity to pursue
surrogacy treatment. Therefore, the Act has taken away the
vested’ right of the petitioners by imposing an age limit on
availing the option of surrogacy.
7.2.1 Both intending couple Nos.1 and 2 drew our attention
to an order of the Delhi High Court dated 10.10.2023
in Mrs. D & Anr. vs. Union of India & Anr., W.P.(C)
No.12395/2023, wherein it granted interim protection
to a couple that had similarly been denied surrogacy
treatment due to the age-limits, despite having frozen
embryos prior to the enforcement of the Act.
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7.2.2 Learned counsel for intending couple No.2 further
submitted that had the petitioners known about or
anticipated the enforcement of such a law with stringent
criteria, they would have specifically made sure to pursue
surrogacy procedures (beyond the freezing of embryos)
before petitioner No.2 (the husband) crossed the age
limit. Therefore, ‘transitional provision’ that accommodated
couples who had already commenced the surrogacy
procedures in some form, is limiting irrational and arbitrary.
7.2.3 In this regard, our attention was drawn to a judgement
of the Kerala High Court in Nandini K. vs. Union of
India, 2022 SCC OnLine Ker 8235 in the context of
similar age-restrictions under the Assisted Reproductive
Technology (Regulation) Act, 2021 (‘ART Act’). It was
observed that while the prescription of an upper age limit
was not so “excessive and arbitrary” as to warrant judicial
interference, the absence of a transitional provision was
irrational and arbitrary.
7.2.4 Therefore, intending couple No.2 have prayed that Section
4(iii)(c)(I) of the Act be declared unconstitutional and that
the petitioners may be permitted to continue surrogacy
treatment despite the age of the petitioner-husband.
7.3 Learned counsel for intending couple No.3 submitted that the
applicants, aged 62 (husband) and 56 (wife) respectively stand
excluded from the process. Further, the applicant-wife is also
excluded from the definition of ‘intending woman’ under the
Act, as well as a ‘woman’ under the Assisted Reproductive
Technology (Regulation) Act, 2021, leaving the couple incapable
of pursuing Assisted Reproductive Technology (ART) methods.
7.3.1 Learned counsel further submitted that the applicants
had already selected an appropriate surrogate mother
and were in the process of conducting the medical
procedures required to transfer the embryos (which were
ready) to the surrogate mother. Their disentitlement and
ineligibility under the Act happened after they had already
take substantial steps prior thereto. On the date that they
began medical procedures, they were well within the
ambit of the then prevailing law. As a matter of urgency,
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Vijaya Kumari S & Another v. Union of India
learned counsel submitted that the last semen analysis
of the applicant husband was conducted at age 58. He is
now already 62 and the chances of medical abnormalities
and associated issues may rise.
7.3.2 Therefore, intending couple No.3 have prayed for
directions to permit them to proceed with the medical
procedures associated with carrying out a successful
surrogacy.
8. Per contra, learned ASG for respondent-Union of India submitted that
the object of the Act is to protect the individuals who are the most
vulnerable (and consequently, whom the State has a higher degree
of responsibility to protect) in the process, namely the surrogate
mother and the child born through surrogacy. Specifically, the child
has a right to adequate guardianship, which might otherwise have
an impact on its quality of life.
8.1 Since surrogacy procedures involve the use of the body of a
third individual, i.e., the surrogate mother, it was submitted that
surrogacy can never be seen as the preferred option to conceive
a child and should only be used as a last-resort measure. This is
in contrast to the relatively less-restrictive regime under the ART
Act, since ART procedures are conducted on one’s own body.
8.2 Further, since the Constitution does not recognise a right over
another individual’s body, the right to avail surrogacy cannot be
claimed as a fundamental right and exists purely as a statutory
right subject to the conditions/restrictions prescribed in the Act.
The right to reproductive autonomy is personal in nature (since
Article 21 recognises the right to ‘personal liberty’) and does
not subsume an individual’s right to use another’s body.
8.3 Learned ASG submitted, that prior to the Act, courts were forced
to adjudicate legal issues such as the right to parenthood through
surrogacy in a legislative vacuum. Therefore, there was a need
to ensure that the rights and interests of surrogate mothers and
children are adequately protected.
8.4 It was submitted that the present trend in India is that the
average age at which couples are getting married is higher than
before. Therefore, the impugned upper age-limits on intending
couples are also in alignment with this trend. The average age
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of menopause in India is 46.2 years and women older than 50
years of age have a higher likelihood of conceiving children
with chromosomal conditions. Further, the sperm quality in
men is compromised above the age of 55. Therefore, after
consultation with stakeholders and domain experts, in the
interests of surrogate children, a need was felt to place an
upper-age limit on intending couples in order to ensure that
the child born through surrogacy has a higher chance of a
healthy life and access to adequate guardianship. It was also
submitted that the child has a right to be raised by two parents
of a reasonable age until the child attains majority and that this
right supersedes any right claimed by the intending couple to
bear a child through surrogacy. This is especially so when they
have crossed the age-limits in question and may be classified
incapable of providing adequate guardianship to the child.
8.5 Learned ASG also submitted that attempting to seek children
beyond the prescribed age is ‘against the natural state of being’,
since even natural birth is not unrestricted by age. By age 45,
the fertility of a woman generally declines to such an extent
that a natural pregnancy is unlikely.
8.6 In response to arguments challenging the constitutionality of
the age-restrictions, it was submitted that the right to avail
surrogacy is now only a statutory right and not a fundamental
right. Further, the age-restrictions are based on a rational
principle founded on scientific reasoning, introduced on the
advice of domain experts. Therefore, it cannot be contended
that the age-limits are arbitrary.
8.7 It was further contended that while the classification created
by the age-limits can be tested under Article 14, the fixation
of the age-limits itself is a matter of legislative prerogative. In
this regard, reliance was placed on the decision of this Court
in Javed vs. State of Haryana, (2003) 8 SCC 369, wherein
this Court upheld a legislation that disqualified persons having
more than two living children from holding certain Panchayat
offices as an exercise of legislative prerogative and wisdom
which was not open to judicial scrutiny.
8.8 On the issue of non-retrospective application, learned ASG
submitted that the Act does not recognise the ‘cryopreservation’
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Vijaya Kumari S & Another v. Union of India
of gametes/embryos as a point of commencement of surrogacy
procedure. Further, Parliament has indeed applied its mind to
existing rights of individuals in the surrogacy process by making
a ‘transitional provision’ in Section 53 of the Act. Therefore, it
was submitted that the transitional period of ten months was
only provided in favour of “existing surrogate mothers” and
cannot be read to include any other category of people and
this is the clear intention of the Parliament.
8.9 Learned ASG drew our attention to paragraph 97 of her written
submissions, which shows that the process of surrogacy consists
of two stages: Stage A and Stage B. The same is extracted
as under:
“97. The process of surrogacy broadly entails the
following stages:
8.10 Learned ASG submitted that the transitional period of ten
months under Section 53 protects only Stage B of the surrogacy
process, which involves the surrogate mother. The attempt of
the petitioners is to move the line upwards, to cover individuals
(intending couple) at various points in Stage A, which is against
the intention of the Parliament.
8.11 It was further submitted that even if cryopreservation was done
prior to the Act, it does not mean that surrogacy can then
proceed de hors the provisions of the Act. Since surrogacy is
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now a statutory right, there can be no right to avail surrogacy
in a manner beyond the scope of the Act.
8.12 It was also submitted that the Act was introduced after a long
deliberative process over years, in which the draft Bill was
made public. Two Parliamentary Committees also undertook
public consultations. Therefore, individuals affected by the
Act, including the petitioners and applicants herein, had the
opportunity to understand and react to the impact of the Act on
them at the relevant point in time. But today, they cannot plead
that their rights, as they prevailed prior to the enforcement of
the Act, be protected.
Issue for Consideration:
9. The issue that has arisen in these cases is that the appropriate
authority would not have the power to issue an eligibility certificate
to undertake a surrogacy procedure under Section 4 of the Act to
an intending couple if the female is above 50 years of age and
the male is above 55 years of age on the date of certification. The
common contention of learned senior counsel and learned counsel
for the petitioners as well as applicant is that they had commenced
the surrogacy procedures prior to the date of enforcement of the
Act, i.e., prior to 25.01.2022 and therefore, when they were in the
midst of such a procedure, the Act brought in an embargo in the
form of the aforementioned age-limit. As a result, they are barred
from continuing the surrogacy procedure post the enforcement of the
Act, although the same had been commenced much prior to the Act.
9.1 In this regard, our attention was drawn to the transitional
provision which only protects the surrogate mother undergoing
a surrogacy procedure for a period of ten months but not an
intending couple undertaking such a procedure. Therefore,
there is a challenge to the fixation of the maximum age under
the Act. It was contended that all intending couples who had
commenced surrogacy procedures prior to the enforcement
of the Act may be permitted to continue with the same. It was
submitted that the age of the intending couple would have
no bearing on the procedure of surrogacy. That, if there is no
bar on bearing a child at that age by a natural process, or for
adopting an infant under the personal law, then such an embargo
regarding age should not be applied in the case of an intending
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Vijaya Kumari S & Another v. Union of India
couple having a child by a surrogacy procedure. That couples
resort to surrogacy as a last resort and if by the time of seeking
certification under Section 4 of the Act, they have crossed the
age bar, they would be deprived of parenthood. It was submitted
that in the case of these petitioners and applicants, the surrogacy
procedure had commenced long before the coming into force
of the Act and the parties had also frozen the embryos and
were at a crucial stage of the process when the age-bar under
the Act led to a frustration of the procedure itself. Therefore, it
was contended that where intending couples had commenced
surrogacy procedures prior to the enforcement of the Act, they
may be permitted to complete the same, irrespective of their
age on the date of certification, if they otherwise comply with
the requirements under the Act.
9.2 Per contra, learned counsel for the respondent-Union of India
contended that with effect from the enforcement of the Act, no
male or female or intending couple who have crossed the age
bar can avail any surrogacy procedure leading to the birth of
a child through surrogacy. Hence, she urged that the age limit
on the date of certification, that determines eligibility for the
purpose of availing surrogacy, must be read accordingly.
10. Section 4(ii)(a) of the Act mandates that no surrogacy procedures
shall be conducted unless the intending couple “has a medical
indication necessitating gestational surrogacy”. Further, Section
4(iii)(a)(I) provides that a ‘certificate of essentiality’ (issued by a
District Medical Board) certifying a medical indication in favour of
either or both members of the intending couple, is a pre-requisite for
undertaking surrogacy procedures. The phrase “medical indication
necessitating gestational surrogacy” is in turn defined under Rule
14 of the Surrogacy (Regulation) Rules, 2022, (‘Rules’, for short)
which is reproduced below:
“14. Medical indications necessitating gestational
surrogacy.—A woman may opt for surrogacy if;—
(a) she has no uterus or missing uterus or abnormal
uterus (like hypoplastic uterus or intrauterine adhesions or
thin endometrium or small unicornuate uterus, T-shaped
uterus) or if the uterus is surgically removed due to any
medical conditions such as gynaecological cancer;
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(b) intended parent or woman who has repeatedly
failed to conceive after multiple In vitro fertilization or
Intracytoplasmic sperm injection attempts. (Recurrent
implantation failure);
(c) multiple pregnancy losses resulting from an
unexplained medical reason. unexplained graft rejection
due to exaggerated immune response;
(d) any illness that makes it impossible for woman to
carry a pregnancy to viability or pregnancy that is life
threatening.”
10.1 In the cases of intending couple Nos.1, 2 and 3, it is not
denied or contested that they qualify for surrogacy procedures
based on the above reasons. Intending couple No.1 submitted
that the petitioner-wife has suffered from excessive bleeding
during prior pregnancies; intending couple No.2 submitted
that they have suffered multiple failed attempts at embryo
transfer between 2012 and 2018; and intending couple No.3
submitted that the applicant-wife was unable to carry a child
naturally due to fibroids in her uterus, and was advised to
opt for surrogacy due to hypertension. The respondent-Union
of India has not contested the fact that prima facie, all three
intending couples may qualify as necessitating gestational
surrogacy under the above Rule. However, this is subject to
medical opinion in light of Rule 14 of the Rules.
10.2 Therefore, the question that falls for our adjudication is whether
the age-restrictions under Section 4(iii)(c)(I) should be applied
to intending couple Nos.1 to 3, all of whom had commenced
the surrogacy process, to the extent of having their embryos
frozen, before the enforcement of the Act.
Concept of Surrogacy:
11. The first attempt at surrogacy regulation in India was in the form of
the “National Guidelines for Accreditation, Supervision and Regulation
of ART Clinics in India”, drafted by the Indian Council of Medical
Research (‘ICMR’), and approved by the Ministry of Health and
Family Welfare, Government of India in the year 2005. It defined
‘surrogacy’ as an “arrangement in which a woman agrees to carry a
pregnancy that is genetically unrelated to her and her husband, with
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Vijaya Kumari S & Another v. Union of India
the intention to carry it to term and hand over the child to the genetic
parents for whom she is acting as a surrogate”. It also prescribed a
list of ‘general considerations’ for surrogacy procedures, for instance,
HIV tests for prospective surrogate mothers, mandatory adoption
of the child by the genetic parents and limits on how many times a
woman can act as a surrogate. Importantly however, the aforesaid
Guidelines did not forbid the practice of ‘commercial surrogacy’. This
was also the case in the subsequent Draft ART Bill, 2008, which
allowed the surrogate mother to work out “the financial terms and
conditions of the surrogacy with the couple”.
11.1 ‘Surrogacy’ as a concept was elaborated upon in great detail by
this Court in Baby Manji Yamada vs. Union of India, (2008)
13 SCC 518, wherein it was observed as follows:
“8. Surrogacy is a well-known method of reproduction
whereby a woman agrees to become pregnant for
the purpose of gestating and giving birth to a child
she will not raise but hand over to a contracted party.
She may be the child’s genetic mother (the more
traditional form for surrogacy) or she may be, as a
gestational carrier, carry the pregnancy to delivery
after having been implanted with an embryo. In
some cases surrogacy is the only available option for
parents who wish to have a child that is biologically
related to them.
9. The word “surrogate”, from Latin “subrogare”,
means “appointed to act in the place of”. The
intended parent(s) is the individual or couple who
intends to rear the child after its birth.
10. In traditional surrogacy (also known as the
Straight method) the surrogate is pregnant with her
own biological child, but this child was conceived with
the intention of relinquishing the child to be raised
by others; by the biological father and possibly his
spouse or partner, either male or female. The child
may be conceived via home artificial insemination
using fresh or frozen sperm or impregnated via
IUI (intrauterine insemination), or ICI (intracervical
insemination) which is performed at a fertility clinic.
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11. In gestational surrogacy (also known as the
Host method) the surrogate becomes pregnant
via embryo transfer with a child of which she is
not the biological mother. She may have made an
arrangement to relinquish it to the biological mother
or father to raise, or to a parent who is themselves
unrelated to the child (e.g. because the child was
conceived using egg donation, germ donation or
is the result of a donated embryo). The surrogate
mother may be called the gestational carrier.
12. Altruistic surrogacy is a situation where the
surrogate receives no financial reward for her
pregnancy or the relinquishment of the child
(although usually all expenses related to the
pregnancy and birth are paid by the intended parents
such as medical expenses, maternity clothing, and
other related expenses).
13. Commercial surrogacy is a form of surrogacy in
which a gestational carrier is paid to carry a child
to maturity in her womb and is usually resorted to
by well-off infertile couples who can afford the cost
involved or people who save and borrow in order to
complete their dream of being parents. This medical
procedure is legal in several countries including in
India where due to excellent medical infrastructure,
high international demand and ready availability of
poor surrogates it is reaching industry proportions.
Commercial surrogacy is sometimes referred to by
the emotionally charged and potentially offensive
terms “wombs for rent”, “outsourced pregnancies”
or “baby farms”.
14. Intended parents may arrange a surrogate
pregnancy because a woman who intends to
parent is infertile in such a way that she cannot
carry a pregnancy to term. Examples include a
woman who has had a hysterectomy, has a uterine
malformation, has had recurrent pregnancy loss or
has a health condition that makes it dangerous for
[2025] 11 S.C.R. 165
Vijaya Kumari S & Another v. Union of India
her to be pregnant. A female intending parent may
also be fertile and healthy, but unwilling to undergo
pregnancy.
15. Alternatively, the intended parent may be a single
male or a male homosexual couple.
16. Surrogates may be relatives, friends, or previous
strangers. Many surrogate arrangements are made
through agencies that help match up intended
parents with women who want to be surrogates for
a fee. The agencies often help manage the complex
medical and legal aspects involved. Surrogacy
arrangements can also be made independently. In
compensated surrogacies the amount a surrogate
receives varies widely from almost nothing above
expenses to over $30,000. Careful screening is
needed to assure their health as the gestational
carrier incurs potential obstetrical risks.”
11.2 The first move towards the prohibition of commercial surrogacy
came with the 228th Report of the Law Commission of India
in 2009, which flagged the problem of India becoming a
“reproductive tourism destination” (i.e., foreign couples come to
India for cost-effective surrogacy procedures) and wombs being
“on rent”. It concluded with the following recommendations,
inter alia:
“1. Surrogacy arrangement will continue to be
governed by contract amongst parties, which will
contain all the terms requiring consent of surrogate
mother to bear child, agreement of her husband
and other family members for the same, medical
procedures of artificial insemination, reimbursement
of all reasonable expenses for carrying child to
full term, willingness to hand over the child born
to the commissioning parent(s), etc. But such an
arrangement should not be for commercial purposes.
2. A surrogacy arrangement should provide for
financial support for surrogate child in the event
of death of the commissioning couple or individual
166 [2025] 11 S.C.R.
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before delivery of the child, or divorce between the
intended parents and subsequent willingness of
none to take delivery of the child.
3. A surrogacy contract should necessarily take
care of life insurance cover for surrogate mother.
4. One of the intended parents should be a donor as
well, because the bond of love and affection with a
child primarily emanates from biological relationship.
Also, the chances of various kinds of child-abuse,
which have been noticed in cases of adoptions, will
be reduced. In case the intended parent is single,
he or she should be a donor to be able to have a
surrogate child. Otherwise, adoption is the way to
have a child which is resorted to if biological (natural)
parents and adoptive parents are different.
5. Legislation itself should recognize a surrogate
child to be the legitimate child of the commissioning
parent(s) without there being any need for adoption
or even declaration of guardian.
6. The birth certificate of the surrogate child should
contain the name(s) of the commissioning parent(s)
only.
7. Right to privacy of donor as well as surrogate
mother should be protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the
Medical Termination of Pregnancy Act 1971 only.”
11.3 The question of age restrictions on the intending couple did
not arise in these prior frameworks and recommendations.
For instance, the ART (Regulation) Bill, 2008 imposed an
age bracket of 21-45 years within which one could become a
surrogate mother. However, there were no similar restrictions
on the commissioning/intending couple. It is only with the
advent of the Act in the year 2022 that the age-restrictions in
Section 4(iii)(c)(I) have been created. Prior to the Act therefore,
in the absence of a legal bar, or for that matter any binding
[2025] 11 S.C.R. 167
Vijaya Kumari S & Another v. Union of India
surrogacy regulations, intending couples were free to bear
children through surrogacy procedures irrespective of their age.
Surrogacy as an Exercise of Reproductive Autonomy:
12. In recent jurisprudence, the Supreme Court has often recognised that
‘reproductive autonomy’ is part of the constellation of rights afforded
to all people under Article 21 of the Constitution. In 2009, a three-
judge bench of this Court in Suchita Srivastava vs. Chandigarh
Admn., (2009) 9 SCC 1 (“Suchita Srivastava”) observed as follows:
“22. 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. It is important to recognise that reproductive
choices can be exercised to procreate as well as to
abstain from procreating. The crucial consideration is that
a woman’s right to privacy, dignity and bodily integrity
should be respected. This means that there should be
no restriction whatsoever on the exercise of reproductive
choices such as a woman’s right to refuse participation
in sexual activity or alternatively the insistence on use
of contraceptive methods.”
(underlining by us)
12.1 In K.S. Puttaswamy (Privacy-9J.) vs. Union of India, (2017)
10 SCC 1, which a recognised a right to privacy within the
contours of Article 21, Dr. D.Y. Chandrachud, J. (as he then
was), observed as follows:
“248. Privacy has distinct connotations including
(i) spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, “The Four
Parts of Privacy in India”, Economic & Political Weekly
(2015), Vol. 50 Issue 22, at p. 32.] Spatial control
denotes the creation of private spaces. Decisional
autonomy comprehends intimate personal choices
such as those governing reproduction as well as
choices expressed in public such as faith or modes
of dress.”
(underlining by us)
168 [2025] 11 S.C.R.
Supreme Court Reports
12.2 Indeed, the freedom to make procreative choices as a facet
of a right to privacy was recognised even as far back as this
Court’s judgement in R. Rajagopal vs. State of T.N., (1994)
6 SCC 632, in which it was observed that “any right to privacy
must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and
child-rearing”.
12.3 It would also be apt to refer to the more recent judgement of
a three-judge bench of this Court in X2 vs. State, authored by
Dr. D.Y. Chandrachud, CJ., where it was observed as under:
“101. The ambit of reproductive rights is not
restricted to the right of women to have or not
have children. It also includes the constellation of
freedoms and entitlements that enable a woman to
decide freely on all matters relating to her sexual
and reproductive health. Reproductive rights include
the right to access education and information about
contraception and sexual health, the right to decide
whether and what type of contraceptives to use, the
right to choose whether and when to have children,
the right to choose the number of children, the right
to access safe and legal abortions, and the right
to reproductive healthcare. Women must also have
the autonomy to make decisions concerning these
rights, free from coercion or violence.”
(underlining by us)
12.4 As recently as 2024, this Court in A vs. State of Maharashtra,
(2024) 6 SCC 327 held that “(the right to choose and)
reproductive freedom is a fundamental right under Article 21
of the Constitution”.
12.5 The 228th Report of the Law Commission of India (supra),
opined that “if reproductive right gets constitutional protection,
surrogacy which allows an infertile couple to exercise that right
also gets the same constitutional protection”. Indeed, before
the enforcement of the Act in the year 2022, we observe that
this was the case. The choice of a couple, medically incapable
of conceiving/bearing children naturally, to pursue surrogacy
[2025] 11 S.C.R. 169
Vijaya Kumari S & Another v. Union of India
procedures to procreate in the absence of binding regulations
was but an exercise of their decisional and reproductive
autonomy. The Act has the object of regulating surrogacy so
as to protect it from commercial exploitation. The object of the
Act is not to frustrate the rights of intending couples who are
otherwise eligible to undertake surrogacy procedures.
12.6 Therefore, at the time that intending couple Nos.1 to 3 herein
generated and froze their embryos, they had qualified for
surrogacy under the prevailing law. Thus, they came to possess
a right to surrogacy as a part of reproductive autonomy and
parenthood. Before 25.01.2022, we find that there were no
binding laws, certifications, etc. regarding age restrictions
on intending couples wishing to avail surrogacy (such as
intending couple Nos.1 to 3 herein). Therefore, for couples
above the (statutory) age limits under the Act, the right to
access surrogacy or their entitlement to surrogacy was not
conditional on their age and was freely available to couples
under the prevailing law.
12.7 To reiterate, we are concerned solely with the question of
age-restrictions in these three cases. The short point is, that
on the issue of age alone, the right to surrogacy as a facet
of autonomy under Article 21 was unrestricted prior to the
enforcement of the Act under consideration. In other words,
the right to decide that despite one’s age, one wishes to have
children through surrogacy, was afforded to intending couples
under Article 21 prior to the enforcement of the Act. Now with
the enforcement of the Act, can that right be stultified?
Retrospective Application of Age-Restrictions:
13. In the case of intending couple Nos.1 to 3, they had exercised this
decisional autonomy and commenced the process of surrogacy, to
the extent of freezing their embryos in preparation for transfer to the
womb of the surrogate mother. They were at the last step of Stage
A as per the diagram (supra).
13.1 Therefore, the real issue is whether a statutory regulation may
apply retrospectively and frustrate a right which had and has
the imprimatur of the Constitution under Article 21 and had
been exercised by intending couples who had commenced
the process of surrogacy prior to the enforcement of the Act.
170 [2025] 11 S.C.R.
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13.2 Ms. Aishwarya Bhati, learned ASG argued that the age-
restrictions under the Act should apply retrospectively to such
couples also since the State has an interest in ensuring that
children born to such parents receive adequate parenting.
Put simply, the submission was that intending couples, one
or both of whom are above the prescribed age-limit(s) under
the Act, will not be able to effectively parent their children.
13.3 We are unable to accept this submission. In Suchita
Srivastava, this Court observed in the case of a pregnant
rape victim that also suffered from mental retardation, that
“(the victim’s) reproductive choice should be respected in
spite of other factors such as the lack of understanding of
the sexual act as well as apprehensions about her capacity
to carry the pregnancy to its full term and the assumption of
maternal responsibilities thereafter”.
13.4 In the present case, the parenting capabilities of the couple
are being used to assail their eligibility to have children through
surrogacy. The above observations in Suchita Srivastava
would apply squarely to such a case as well. 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.
13.5 In this regard, we consider it useful to note that the law
does not impose any age restrictions on couples who wish
to conceive and bear children naturally. In this regard, prior
to the enforcement of the Act, intending couple Nos.1 to 3
were on the same footing as couples who wished to conceive
naturally. But, the stark distinction is that owing to medical
reasons/disadvantages, they could not have children naturally.
Having exercised this parity in freedom by commencing the
surrogacy process, can it be said that they can now be denied
the continued exercise of this freedom only because of the
age bar under the Act? We are not inclined to believe so.
13.6 Learned ASG for the respondent-Union of India also argued
that the age-limits should be applied retrospectively due to
concerns over the declining quality of gametes with age and
the potential impact of the same on the children born through
surrogacy. However, we are also not inclined to accept this
[2025] 11 S.C.R. 171
Vijaya Kumari S & Another v. Union of India
submission for the same reasons as above. Whatever be the
restrictions post the enforcement of the Act, the fact remains
that prior to 25.01.2022, intending couple Nos.1 to 3 were not
restricted by their age and had duly commenced the surrogacy
process using their freedom. On the basis of concerns over
gamete quality, the law does not fetter couples who wish to
bear children naturally. Prior to the enforcement of the Act, the
law did not fetter intending couple Nos.1 to 3 on this ground
either. Moreover, there is no age bar for couples who wish to
adopt children under the provisions of the Hindu Adoptions
and Maintenance Act, 1956, which personal law applies to
the intending couples herein.
13.7 We must clarify that we are not questioning the wisdom of the
Parliament in its prescription of age-limits under the Act, or
passing a judgement on its validity. Rather, the cases before
us are limited to couples who commenced the surrogacy
process before the enforcement of the Act, and we limit our
observations to the same. Therefore, the question that arises
is, whether, the respondent-Union of India has been able to
demonstrate compelling reasons as to why the age-limits
must apply retrospectively and why the freedom of intending
couple Nos.1 to 3 to pursue surrogacy, once exercised by
them, should now be taken away. Concerns over parenting
and gamete quality, while possibly being legitimate concerns
for lawmakers (though we do not express any opinion on the
same), are not compelling reasons for retrospective application
of the Act, especially since the State allows some categories
of couples (those who wish to conceive naturally) to procreate
despite these concerns or for that matter to opt for adoption
as per personal law.
13.8 In this regard, we find force in the submissions of learned
senior counsel and counsel for the petitioners that 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 with a view to obviate exploitation of
surrogate mothers through a process of commercial surrogacy.
Therefore, such a constitutional right cannot be taken away
172 [2025] 11 S.C.R.
Supreme Court Reports
retrospectively from them on account of their age, without an
express intention to do so under the Act. The judgements of
this Court in S.L. Srinivasa Jute Twine Mills and Gopinathan
Nair squarely apply in the cases before us. In the first of the
aforesaid cases, it was observed in paragraph 18 as under:
“18. It is a cardinal principle of construction that
every statute is prima facie prospective unless it is
expressly or by necessary implication made to have
retrospective operation. (See Keshavan Madhava
Menon v. State of Bombay [1951 SCC 16 : 1951
SCR 228 : AIR 1951 SC 128: 1951 Cri LJ 860] .)
But the rule in general is applicable where the object
of the statute is to affect vested rights or to impose
new burdens or to impair existing obligations. 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. In
the words of Lord Blanesburgh,
“provisions which touch a right in existence
at the passing of the statute are not to
be applied retrospectively in the absence
of express enactment or necessary
intendment” (see Delhi Cloth & General
Mills Co. Ltd. v. CIT [AIR 1927 PC 242 :
54 IA 421] , AIR p. 244).
“Every statute, it has been said”, observed Lopes,
L.J.,
“which takes away or impairs vested
rights acquired under existing laws, or
creates a new obligation or imposes a
new duty, or attaches a new disability
in respect of transactions already past,
must be presumed to be intended not
to have a retrospective effect.” (See
Amireddi Rajagopala Rao v. Amireddi
Sitharamamma [(1965) 3 SCR 122 :
AIR 1965 SC 1970] .) [Ed. : But see
[2025] 11 S.C.R. 173
Vijaya Kumari S & Another v. Union of India
fn. 27, p. 402 of Principles of Statutory
Interpretation, by Justice G.P. Singh, 8th
Edn. (Reprint) 2002.]
As a logical corollary of the general rule, that
retrospective operation is not taken to be intended
unless that intention is manifested by express words
or necessary implication, there is a subordinate rule
to the effect that a statute or a section in it is not
to be construed so as to have larger retrospective
operation than its language renders necessary.
(See Reid v. Reid [(1886) 31 Ch D 402 : 54 LT
100 (CA)] .) In other words, close attention must
be paid to the language of the statutory provision
for determining the scope of the retrospectivity
intended by Parliament. (See Union of India v.
Raghubir Singh [(1989) 2 SCC 754 : AIR 1989 SC
1933] .) The above position has been highlighted
in Principles of Statutory Interpretation by Justice
G.P. Singh. (10th Edn., 2006 at pp. 474 and 475.)”
13.9 It is important to note in this regard, that the relevant age-
limits under the Act are imposed on the intending couples
in the present cases. Therefore, they are in the nature of
fetters on the freedom of choice and the realm of decision-
making that, in the absence of regulation, would be the sole
prerogative of intending couples. For intending couples who
undertook surrogacy procedures prior to the Act, age-related
considerations were entirely their prerogative and as explained
earlier, an exercise of their rights under Article 21 of the
Constitution. Therefore, we have no hesitation in observing
that the right to make autonomous decisions regarding the
age at which one wished to pursue surrogacy, had vested
in intending couple Nos.1 to 3. Hence, since there is no
manifest intention in the provisions of the Act to apply the
age-limits retrospectively, we are of the view that the same is
not permissible. Further, the intending couples in the present
cases could have opted for adoption of children under personal
law in the absence of an age restriction. In such a situation,
the argument regarding quality parenting would be futile and
of no consequence.
174 [2025] 11 S.C.R.
Supreme Court Reports
13.10 In this regard, it is helpful to refer to the Statement of Objects
and Reasons in the Surrogacy (Regulation) Bill, 2019, relevant
parts of which are reproduced below:
“India has emerged as a surrogacy hub for couples
from different countries for past few years. There
have been reported incidents of unethical practices,
exploitation of surrogate mothers, abandonment of
children born out of surrogacy and import of human
embryos and gametes. Widespread condemnation
of commercial surrogacy in India has been regularly
reflected in different print and electronic media
for last few years. The Law Commission of India
has, in its 228th Report, also recommended for
prohibition of commercial surrogacy by enacting
a suitable legislation. Due to lack of legislation to
regulate surrogacy, the practice of surrogacy has
been misused by the surrogacy clinics, which leads
to rampant of commercial surrogacy and unethical
practices in the said area of surrogacy.
2. In the light of above, it had become necessary
to enact a legislation to regulate surrogacy services
in the country, to prohibit the potential exploitation
of surrogate mothers and to protect the rights of
children born through surrogacy.”
(underlining by us)
13.11 The common thread that runs through the emphasised portions
above is that they express the need for surrogacy regulation
in terms of impacts on people who are different from the
intending couple – exploitation of the surrogate mother and
the rights (pertinently the protection against abandonment)
of children born through surrogacy. These considerations
have manifested in various provisions of the Act, such as
the prohibition of commercial surrogacy [Section 4(ii)(c)]; the
prohibition on surrogacy clinics, inter alia, inducing a woman
to act as a surrogate mother [Section 3(v)(b)]; the prohibition
on abandonment of the child (Section 7); the right of a child
to be deemed a ‘biological child’ of the intending couple
(Section 8), etc.
[2025] 11 S.C.R. 175
Vijaya Kumari S & Another v. Union of India
13.12 Thus, prior to the enforcement of the Act, the right to pursue
surrogacy despite one’s age, did not impinge on any of the
above considerations and was solely in the decision-making
domain of the intending couple. It was a personal decision,
with personal consequences. Although the respondent-Union
of India has argued that the age-limits are directly related to
the welfare of the children, as explained above, we are unable
to accept this submission in view of the unlimited freedom
afforded to couples who wish to conceive children naturally,
irrespective of their age. This was also the status occupied
by intending couple Nos.1 to 3 before the enforcement of
the Act. Their decision to have children through surrogacy
despite their age was a personal one and did not involve a
third person (the surrogate mother) or the rights of the children
to be considered biological children.
13.13 Therefore, we are of the view that the right to decide to bear
children through surrogacy despite their ages, is one that can
legitimately be considered to have vested in intending couple
Nos.1 to 3 herein prior to the coming into force of the Act,
following their decision to undertake the surrogacy procedure.
At this point, we must once again reiterate that our decision
is restricted to intending couple Nos.1 to 3, who have been
prevented from pursuing surrogacy solely due to their age,
despite having commenced the surrogacy procedure before
the enforcement of the Act. We make it clear that have not
considered the vires of the age fixation under Section 4 for
intending couples in this order.
‘Commencement’ of the Surrogacy Procedure:
14. The next question that arises is the proper meaning of the term
‘commencement’ of the surrogacy procedure. When can it be said
that couples have ‘commenced’ the process of surrogacy before
the enforcement of the Act, and hence may be allowed to continue
despite the subsequent age-limits? In this regard, we find it helpful
to refer to the diagram submitted by the respondent-Union of India,
referred to in an earlier paragraph of this order.
14.1 We can see that the last step in Stage A is the ‘freezing of
embryos’, which marks the last step before the commencement
of Stage B, which involves the surrogate mother inasmuch
176 [2025] 11 S.C.R.
Supreme Court Reports
as the embryos are transferred to the uterus of the surrogate
mother by implantation. At this point, the intending couple has
already completed the process of extracting gametes which
included both the sperm and oocyte; fertilising them to form
zygotes, and freezing the resulting ‘embryos’, which means a
developing or developed organism after fertilization till the end
of fifty-six days. Section 2(c) defines “fertilisation” to mean the
penetration of the ovum by the spermatozoan and fusion of
genetic materials resulting in the development of a zygote. The
word ‘zygote’ is defined in Section 2(zh) to mean the fertilised
oocyte prior to the first cell division. Further, from the fifty-
seventh day after fertilization onwards, the organism is called
a ‘foetus’ which is defined to mean a human organism during
the period of its development beginning on the fifty-seventh day
following fertilisation or creation (excluding any time in which
its development has been suspended) and ending at birth.
This is the stage at which intending couple Nos.1 to 3 found
themselves before the commencement of the Act. They were
thus ready to transfer the embryo to the womb of the surrogate
mother.
14.2 Now, if the transfer to the womb had been effected before
the commencement of the Act, then Section 53 would have
operated as a ‘gestational’ (transitional) period to the benefit
of the surrogate mother in which the age restrictions on the
intending couple would not have applied at all. Therefore,
even if a surrogate child is born within ten months after the
Act is enforced then the age bar would not apply insofar as
the intending couples are concerned. Hence, the submission
of learned ASG is that the age-limits can be transgressed
only when the surrogate mother has been introduced into the
surrogacy procedure. However, we do not find this to be a valid
argument. This would mean that even if the intending couple
had crossed the age restriction prior to the enforcement of
the Act, and the transitional provision applied, the concerns of
them being too old to have children and concerns regarding
the quality of their parenting would vanish and be disregarded.
Such a position cannot be accepted as the same in effect
frustrates the right of intending couples attempting to have
a surrogate child, which is a constitutional right regulated by
[2025] 11 S.C.R. 177
Vijaya Kumari S & Another v. Union of India
statute. Hence, there is a need to strike a balance between
the provision regarding the age restriction, the transitional
provision (Section 53 of the Act) and the rights of the intending
couples to have a surrogate child when they had commenced
the surrogacy procedure prior to the commencement of the
Act and were in the midst of the said procedure when the
Act has placed age restrictions on them. In the instant case,
the intending couples were a step away from involving the
surrogate mother in the process.
14.3 Therefore, we deem it appropriate to observe that the
‘commencement’ of the surrogacy process for the limited
purpose of determining when the age-limits under the Act
must be applied prospectively and not retrospectively takes
place after the intending couple has completed the extraction
and fertilisation of gametes and has frozen the embryo with
an intention to and for the purposes of, transfer to the womb
of the surrogate mother. There is no additional step to be
undertaken by the couple themselves. All subsequent steps
would involve only the surrogate mother. There is nothing else
for the couple to do by themselves, that would strengthen the
manifestation of their intention to pursue surrogacy. Therefore,
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 and all that remained was involvement
of the surrogate mother herself in Stage B of the diagram,
which could not be gone through due to various circumstances
including the intervention of Covid-19 Pandemic in these cases.
14.4 We also wish to refer in an analogous way to the relevant
portion of an earlier order of this Court (B.V. Nagarathna and
Ujjal Bhuyan, JJ.) dated 18.10.2023 in the main Writ Petition,
i.e., Arun Muthuvel vs. Union of India and Ors., WP (Civil)
No.756 of 2022. This was in the context of an amendment
made to Form 2 (disallowing the use of donor gametes) and
the other provisions of the Surrogacy Act and Rules, which
can be extracted as under:
“Secondly, the petitioner herein had commenced
the procedure for achieving parenthood through
surrogacy much prior to the amendment which
178 [2025] 11 S.C.R.
Supreme Court Reports
has come into effect from 14.03.2023. Therefore,
the amendment which is now coming in the way
of the intending couple and preventing them from
achieving parenthood through surrogacy, we find,
is prima facie contrary to what is intended under
the main provisions of the Surrogacy Act both in
the form as well as in substance.”
However, the point on ‘commencement of surrogacy prior to
the amendment’ is mentioned only briefly in the order, while
considering the question regarding the dissonance between
the impugned amendment to Form 2, and Rule 14(a) of the
Surrogacy Rules.
Operation of a statute:
15. The controversy in this case really revolves around the concept of
operation of statutes under principles of statutory interpretation. This
is because the Act has been enforced with effect from 25.01.2022
mandating certain requirements to be fulfilled by the intending
couples, one of which is the requirement of age. As already
noted, the petitioners and applicant herein contend that they have
commenced the surrogacy procedure prior to the commencement
of the Act and therefore, the same cannot now be frustrated on the
basis of age restrictions imposed under Section 4(iii)(c)(I) of the Act.
Hence, the point for consideration is, whether, the operation of the
Act is retrospective in nature so as to encompass intending couple
Nos.1, 2 and 3, or whether, the mandatory requirements under the
Act would only apply prospectively from the date of the enforcement
of the Act, i.e., when the surrogacy procedure is commenced on or
after 25.01.2022.
15.1 We observe that a piece of Central Legislation comes into
operation on the day it receives Presidential assent and is
generally construed as coming into operation immediately
on the expiration of the day preceding its commencement.
Thus, in the instant case, the Act has come into operation on
the midnight between 24.01.2022 and 25.01.2022. Further,
the Parliament as well as the State Legislatures have the
plenary powers to make laws both prospectively as well as
retrospectively. By retrospective legislation, the Parliament or
a Legislature may make a law which is operative for a limited
[2025] 11 S.C.R. 179
Vijaya Kumari S & Another v. Union of India
period prior to the date of its coming into force. This power is
generally used for validating prior executive and legislative acts
by retrospectively curing the defects which led to the invalidity
and thus, making ineffective judgments of competent courts
declaring the invalidity.
15.2 Another cardinal principle of construction is that every statute
is generally prospective unless it is made retrospective
either expressly or by necessary implication vide State of
Bombay vs. Vishnu Ramchandra, AIR 1961 SC 307 (“Vishnu
Ramchandra”); Zile Singh vs. State of Haryana, AIR 2004
SC 5100 (“Zile Singh”). Thus, a new law ought to regulate
what is to follow and not the past. This is a presumption of
prospectivity which is expressed in the legal maxim, nova
constitutio futuris formam imponere debet non praeteritis. Thus,
the presumption operates unless the contrary is expressed
in the statute itself or is otherwise discernible by necessary
implication vide Monnet Ispat & Energy Ltd. vs. Union of
India, (2012) 11 SCC 1. In other words, a right in existence at
the passing of the statute cannot be impacted by its provisions
retrospectively in the absence of an express enactment or
necessary intendment. Thus, any statute which takes away
or impairs vested rights acquired under existing laws or, inter
alia, attaches a new disability in respect of transaction already
passed, must be presumed to be intended not to have a
retrospective effect. Therefore, a statute cannot be construed to
have a retrospective operation than what the language desires
it to be necessary. Further, a statute need not have an express
provision to make it retrospective as by necessary implication
a statute can have a retrospective operation depending on the
use of legal fiction or by necessary implication.
15.3 Another principle flowing from presumption against
retrospectivity is that “one does not expect rights conferred
by the statute to be destroyed by events which took place
before it was passed”.
15.4 In contrast to statutes dealing with substantive rights, statutes
dealing merely with matters of procedure are presumed to be
retrospective unless such a construction is textually inadmissible
vide Hitendra Vishnu Thakur vs. State of Maharashtra, AIR
1994 SC 2623 (“Hitendra Vishnu Thakur”). It has been
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said that law relating to forum and limitation is procedural
in nature whereas law relating to right of action and right of
appeal even though remedial is substantive in nature; that
procedural statute should not generally speaking be applied
retrospectively where the result would be to create new
disabilities or obligations or to impose new duties in respect
of transactions already accomplished; that statute which
not only changes the procedure but also creates new rights
and obligations shall be construed to be prospective unless
otherwise provided either expressly or by necessary implication
vide Hitendra Vishnu Thakur.
15.5 The classification of a statute as either substantive or
procedural does not necessarily determine whether it may have
a retrospective operation. For example, a statute of limitation
is generally regarded as procedural but if its application to a
past cause of action has the effect of reviving or extinguishing
a right of suit, such an operation cannot be said to be merely
procedural. For these reasons the rule against retrospectivity
has also been avoiding the classification of statutes into
substantive and procedural and avoiding use of words like
existing or vested. One such formulation by Dixon, C.J. is
in Maxwell vs. Murphy, (1957) 96 CLR 261, page No. 267
which is as follows:
“The general rule of the common law is that a statute
changing the law ought not, unless the intention
appears with reasonable certainty, to be understood
as applying to facts or events that have already
occurred in such a way as to confer or impose or
otherwise affect rights or liabilities which the law
had defined by reference to the past events. But,
given rights and liabilities fixed by reference to the
past facts, matters or events, the law appointing
or regulating the manner in which they are to be
enforced or their enjoyment is to be secured by
judicial remedy is not within the application of such
a presumption.”
15.6 Another more simple statement of the rule was made in
Secretary of State for Social Security vs. Tunnicliff, (1991)
2 All ER 712 by Staughton LJ in the following words:
[2025] 11 S.C.R. 181
Vijaya Kumari S & Another v. Union of India
“The true principle is that Parliament is presumed
not to have intended to alter the law applicable to
past events and transactions in a manner which is
unfair to those concerned in them unless a contrary
intention appears. It is not simply a question of
classifying an enactment as retrospective or not
retrospective. Rather it may well be a matter of
degree - the greater the unfairness, the more it is
to be expected that Parliament will make it clear if
that is intended.”
The above statement was approved by the House of Lords in
L’office Cherifien des Phosphates vs. Yamashita Shinnihon
Steamship Co. Ltd., (1994) 1 All ER 20. It was observed that
the question of fairness will have to be answered in respect of
a particular statute by taking into account various factors, viz.,
value of the rights which the statute affects; extent to which
that value is diminished or extinguished by the suggested
retrospective effect of the statute; unfairness of adversely
affecting the rights; clarity of the language used by Parliament
and the circumstances in which the legislation was created.
15.7 All these factors must be weighed together to provide a direct
answer to the question whether the consequences of reading
the statute with the suggested degree of retrospectivity is so
unfair that the words used by Parliament could not have been
intended to mean what they might appear to say. (Source: G.P.
Singh’s Principles of Statutory Interpretation, 15th Edition)
15.8 The real issue in each case is as to the dominant intention
of the Legislature to be gathered from the language used,
the object indicated, the nature of rights affected, and the
circumstances under which the statute is passed. Applying the
aforesaid principles to the present case, if the intending couple
had attained the age of 50 and 55 years prior to the coming
into force of the Act and had also commenced the surrogacy
procedure would the certification be denied to them after the
coming into force of the Act. Conversely, if the intending couple
were within the age limits when they commenced the surrogacy
procedure and on the date of certification sought under the Act
had overreached the age limits will the certificate be denied to
182 [2025] 11 S.C.R.
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them? In our view, in both of the above situations the provision
cannot apply retrospectively so as to deny the certification to
the intending couples in the present cases on the premise that
on the date of issuance of certification they had crossed the
age bar. This is because there was no age restriction when
the intending couples commenced the surrogacy procedure,
the Act has been enforced when the intending couple were
in the midst of the procedure, at a crucial phase i.e., at the
stage of creation of embryos and freezing the same. This was
a sufficient manifestation of their intention. The next step was
to transfer the frozen embryos to the uterus of the surrogate
mother. At that stage the age bar under the Act has come
into play. The intending couples have a constitutional right
which was unfettered when they commenced the process
of surrogacy. The same can be curtailed only by reasonable
restrictions and by not interpreting the Act unfairly, so as to
completely curtail their constitutional right to surrogacy which
was unfettered by the Act not giving a retrospective or even
a retroactive effect to the Act under consideration.
15.9 We therefore hold that creation of embryos and freezing of
the same is crystallization of the said process as it clearly
demonstrates the intention of the couples i.e., intending
couples, in the instant cases. The earlier stages, namely, (i) Visit
to surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining
of the various permissions / certificates from Appropriate
Authorities under Section 4 of the Act, (iv) Extraction of gametes
of Stage A, are no doubt part of surrogacy procedure but are
stages prior to the crystallization of the intention of the couple
to undertake a surrogacy procedure an interpretation we are
giving in the context of age barriers. Therefore, when there
was no age restriction at the stage of creation of embryos and
freezing them i.e., prior to the enforcement of the Act, when
the intending couples are at the threshold of Stage B, the
age restriction under the Act cannot be permitted to operate
retrospectively on such intending couples as in the present
cases so as to frustrate not just the surrogacy procedure but
also their right to have a surrogate child or become parents,
the latter being a constitutional right under Article 21 of the
Constitution.
[2025] 11 S.C.R. 183
Vijaya Kumari S & Another v. Union of India
15.10 Therefore, the rule against retrospective operation of statutes
applies in the instant case in order to preserve the rights of
intending couples such as the petitioners/applicant in the
present case. If we do not apply the aforesaid principle of
interpretation of statutes we would failing in our duty to uphold
the constitutional right of such intending couples under Article
21 of the Constitution. Therefore, we hold that the age bar
does not apply to intending couples such as the ones we are
considering in the present cases.
16. Thus, if an intending couple had -
(i) commenced the surrogacy procedure prior to the commencement
of the Act i.e., 25.01.2022; and
(ii) were at the stage of creation of embryos and freezing after
extraction of gametes (Stage A of the diagram); and
(iii) on the threshold of transfer of embryos to the uterus of the
surrogate mother (Stage B of the diagram)
The age restriction under Section 4(iii)(c)(I) of the Act would not
apply. The competent authority, on being satisfied about the aforesaid
conditions (i), (ii) and (iii) above shall issue the certification provided
Rule 14 of the Rules are satisfied by the intending couples.
17. In the result, 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. We reiterate
that we have not considered the validity of the age restrictions in
this order but only the applicability of the same to the petitioners
and the applicants herein. The writ petitions and the application are
allowed in the aforesaid terms.
18. The petitioners and the applicants are exempted from seeking
certification on the qualifying age for the purpose of continuing the
surrogacy procedure provided they satisfy the other conditions under
the Act and the rules made thereunder.
19. 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 as determined by us
above and wish to seek redressal in terms of this order, they may
approach the jurisdictional High Court instead of directly approaching
this Court.
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Judgment
K.V. Viswanathan, J.
1. I have had the advantage of reading the erudite opinion of my
learned sister, B.V. Nagarathna J. While lending my concurrence to
the view taken, considering the importance of the issue, the following
additional reasons are penned.
2. The purpose of this judgment is to reinforce the aspect that by the
fertilization of the embryo prior to 25.01.2022, certain rights inhered
in the intending couple and the Surrogacy (Regulation) Act, 2021
(for short ‘the Act’) does not divest them of those rights.
LEGAL REGIME PRIOR TO 25.01.2022:-
3. Prior to the coming into force of the Act with effect from 25.01.2022,
there was no age limit prescribed by any law or executive instruction
for the intending couple to be eligible to resort to parenting through
the procedure of surrogacy. The policy in place which dealt with this
subject was the National Guidelines for Accreditation, Supervision
and Regulation of ART Clinics in India issued by Indian Council of
Medical Research (ICMR) in 2005. The said guidelines not only
dealt with regulation of ART clinics but also prescribed eligibility on
aspects like sperm donor, oocyte donor and surrogate mother. While
there was an upper age limit prescribed for donors, for a married
couple intending to resort to the procedure of surrogacy, there was
no age limit.
4. Clause 3.11.1 of the Guidelines prescribed that couples must give
specific consent for storage and use of their embryos. It provided
that the Human Fertilization & Embryology Act, UK (1990) allowed a
5-year storage period that India would also follow. Clause 3.11 and
sub-clause 3.11.1 are extracted and set out herein below:-
"3.11 Preservation, Utilization & Destruction of
Embryos
3.11.1 Couples must give specific consent to storage and
use of their embryos. The Human Fertilization &
Embryology Act, UK (1990), allows a 5-year storage
period which India would also follow.”
[2025] 11 S.C.R. 185
Vijaya Kumari S & Another v. Union of India
5. For the intending couples, like the petitioners in this case, who froze
the embryos and completed the following Stage A process, as in the
diagram provided below by the learned Additional Solicitor General,
there was no legal bar to resort to the said process: -
RIGHT INCLUDES LIBERTY – SALMOND: -
6. Salmond on Jurisprudence, Twelfth Edition by P. J. Fitzgerald, while
dealing with the aspect of legal rights in the wider sense of the term,
sets out the principle that there are things which an individual may
do without being prevented by the law. It further mentions that the
sphere of one’s legal liberty is that sphere of activity within which
the law is content to leave the individual alone. Salmond asserts
that “the term right is often used in a wide sense to include such
liberty.” (at page 225)
“Liberties and no-rights. Just as my legal rights (in the
strict sense) are the benefits which I derive from legal
duties imposed upon other persons, so my legal liberties
(sometimes called licences or privileges) are the benefits
which I derive from the absence of legal duties imposed
upon myself. They are the various forms assumed by the
interest which I have in doing as I please. They are the
things which I may do without being prevented by the
law. The sphere of my legal liberty is that sphere of
activity within which the law is content to leave me
alone. It is clear that the term right is often used in a
186 [2025] 11 S.C.R.
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wide sense to include such liberty. I have a right (that
is to say, I am at liberty) to do as I please with my own;
but I have no right and am not at liberty to interfere with
what is another’s. I have a right to express my opinions on
public affairs, but I have no right to publish a defamatory
or seditious libel. I have a right to defend myself against
violence, but I have no right to take revenge upon him
who has injured me.”
(Emphasis supplied)
7. At a time when there was no disability attached, the petitioners
exercised the liberty that inhered in them and certain rights accrued
to them once they finished the Stage A process. It is at this stage
that the Act has stepped in and in Section 4(iii)(c)(I) created a
disability for them by prescribing that unless the intending couple
are married and between the age of 23-50 years in case of female
and 26-55 years in case of male on the day of certification, eligibility
certificate for initiating, performing, undertaking or conducting
surrogacy or surrogacy procedure shall not be issued. It is in this
scenario that the question whether the age restriction under section
4(iii)(c)(I) is applicable to the intending couple herein, has arisen
for consideration.
VESTED/CONTINGENT RIGHTS Vs. HOPE/SPES:-
8. Salmond on Jurisprudence, Twelfth Edition by P. J. Fitzgerald, defines
vested rights, contingent rights and distinguishes them from a mere
hope or spes. They are set out hereinbelow (page 245):-
“Vested and contingent rights:- A right vests when all
the facts have occurred which must by law occur in
order for the person in question to have the right.
A right is contingent when some but not all of the
vestitive facts, as they are termed, have occurred. A
grant of land to A in fee simple will give A a vested right
of ownership. A grant to A for life and then to B in fee
simple if he survives A, gives B a contingent right. It is
contingent because some of the vestitive facts have not
yet taken place, and indeed may never do so: B may not
survive A. If he does, his formerly contingent right now
[2025] 11 S.C.R. 187
Vijaya Kumari S & Another v. Union of India
becomes vested. A contingent right then is a right that
is incomplete.
A contingent right is different, however, from a mere
hope or spes. If A leaves B a legacy in his will, B has
no right to this during A’s lifetime. He has no more than
a hope that he will obtain the legacy; he certainly does
not have an incomplete right, since it is open to A at any
time to alter his will”
(Emphasis Supplied)
9. 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 and hence, the Act, as we read then, does not
seek to divest that.
10. The Delhi High Court in Mrs. D and Anr. v. Union of India and Anr.
(Writ Petition (Civil) No.12395/2023), held as under: -
“12. The Petitioners have encountered a roadblock in
obtaining the eligibility certificate, primarily due to their age
exceeding the prescribed limits. However, it is essential to
note that the Petitioners commenced their IVF treatment,
and embryo was created on 03rd December, 2021,
when the age restrictions outlined in both the SR Act
and the ART Act, were not yet in effect. Furthermore, it
is essential to emphasize that the embryos were created
through the fertilization of gametes that were recovered
and frozen when the Petitioners’ ages were well below
the age limit introduced under the impugned provision.
Prima facie, the impugned provision cannot be applied
retrospectively, thereby disqualifying individuals who
had already initiated or undergone the ART process,
in accordance with the prevailing laws. Mr. Chetan
Sharma, learned Additional Solicitor General, has also
fairly pointed out that the legal implications of the provision
should be prospective in nature. Considering these crucial
facts, in our opinion, the impugned provision should not
be interpreted as an obstacle to the Petitioners’ pursuit
of surrogacy.
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13. At this juncture, we must reference a judgment passed
by the High Court of Kerala in Nandini K (Supra), as it
bears significant relevance to the issue at hand. In that
case, the Court was dealing with Section 21(g) of the ART
Act, which prescribes the age limit for couples desirous
of availing ART. It was held that if the prohibition under
Section 21(g) is understood to be preventing continuance
of ART services that had already commenced, it would
amount to unreasonable and unjustified restriction on the
reproductive choice of the commissioning couple, and
would militate against the liberty guaranteed under Article
21 of the Constitution. As a result, the Court determined
that couples who had initiated IVF treatment prior to 25th
January, 2022 (the date of the enforcement of the ART Act)
should not be adversely affected by the age prescription
outlined in the ART Act. This precedent, set by the High
Court of Kerala, sheds significant light on the prospective
applicability of standing provisions, and reinforces the
argument in favour of the Petitioners.”
(Emphasis supplied)
TRANSITIONAL PROVISION – SECTION 53 – OPERATES IN ITS
OWN SPHERE:-
11. The argument of Ms. Aishwarya Bhati, the learned Additional Solicitor
General, that the Act provides a transitional provision and only cases
covered under the transitional provision could be protected cannot
be accepted. The transitional provision operates in its own sphere
and reads as under:-
“53. Transitional provision.— Subject to the provisions
of this Act, there shall be provided a gestation period of
ten months from the date of coming into force of this Act
to existing surrogate mothers’ to protect their well being.”
12. This provision cannot be construed as a free license under the
Act to divest vested right. This provision does not make the Act
retrospective in a manner as to divest vested rights as set out above.
As we construe the Act, vested rights are not divested, and the new
disability created will not apply to cases like that of the petitioners
(intending couples), and their rights do not stand neutralised.
[2025] 11 S.C.R. 189
Vijaya Kumari S & Another v. Union of India
ANALOGY FROM PRECEDENTS – HOLDING “THINGS DONE TO
INCLUDE LEGAL CONSEQUENCES FLOWING THEREFROM”:-
13. Though the case arose in a slightly different context, the ratio of this
Court in Anushka Rengunthwar v. Union of India1, has a great
bearing for the case at hand. In Anushka Rengunthwar (supra), the
petitioner students were Overseas Citizens of India (OCI). The initial
policy was to consider OCI students on par with Indian citizens and
they were entitled to compete for medical seats under the National
Eligibility cum Entrance Test (NEET) like any other Indian Citizen.
The policy was changed by the notification of 04.03.2021 and under
the new policy the right to compete as Indian citizens for the seats
was taken away and their eligibility was confined to competing for
Non-Resident Indian seats or for supernumerary seats.
14. The argument of the petitioners and the respondent-Union as recorded
by the Court was in the following terms:
CONTENTIONS
“12. … …OCIs have taken up particular stream of
education, passing 10th and 12th from schools in same
state, meeting domicile/residence requirements, keeping
in mind the rights which were available to them and hence
their such acts would be saved as “things done” as per
the words “except as respect things done or omitted to be
done before such supersession” appearing in impugned
Notification dated 4-3-2021. In support of this submission,
reliance was placed on Universal Imports Agency v. Chief
Controller of Imports & Exports, 1960 SCC OnLine SC 42.
The OCIs were entitled to have “legitimate expectation”
as enshrined in Navjyoti [Navjyoti Coop. Group Housing
Society v. Union of India, (1992) 4 SCC 477] that the
said rights will continue to be available to them and not
retrograded. That only a limited number of OCIs take the
exam and out of them only a minuscule number clear the
same and become eligible for admission. Hence no grave
prejudice was being caused if the OCIs were allowed to
1 (2023) 11 SCC 209
190 [2025] 11 S.C.R.
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seek admission to all seats based on merit and withdrawal
of the same is therefore arbitrary and unreasonable.
13. The summary of the contention on behalf of the
respondents as put forth by the learned Additional Solicitor
General is as follows. The present case essentially raises
a singular issue with regard to the classification made
between Indian citizens and Overseas Citizens of India
cardholders and the same being statutory, whether it is
sustainable. It is contended that the classification made
by the impugned notification is supported by statutory
provisions which legitimises the State’s interest and
ensures that the limited number of seats in educational
institutions are available to Indian citizens and not taken
away by foreigners.”
15. Accepting the stand of the petitioners therein, this Court held as
under:-
“49. The above-extracted details would indicate that
in all the cases the petitioners have studied for more
than six years in India and in most of the cases,
almost the entire educational career up to the stage
of the qualifying examination for the pre-medical
test has been undertaken in India. Apart from the
specific cases noted herein, there are also petitioners/
persons who had become citizens of a foreign country
for compelling reasons, but hold benefit of OCI card.
This would demonstrate that though in terms of law, the
petitioners were “foreigners” due to the incident of birth in
a foreign country or such other compelling circumstances,
they continue to remain in India and to pursue their
education and had fully justified the mid-path benefit given
to them based on the OCI card. The manner in which they
have conducted themselves by being students in India
would indicate that in addition to having the umbilical
connection with the country, they being aware of the
right conferred through the Notifications dated 11-
4-2005 and 5-1-2009 had positioned themselves to
further their professional career by making a choice
of their profession and undertaking the preparation
[2025] 11 S.C.R. 191
Vijaya Kumari S & Another v. Union of India
for the same. This was based on what was held out
to that class of Overseas citizens. In fact, their entire
educational career has been of the same standard, with
the same “advantages” and “disadvantages” as has been
the case with the students who are Indian citizens. In such
situation, though in the strict term of the word “legitimate
expectation”, it may not fall, a statutory right conferred had
sown the seed of hope recognising the affiliation to this
country, though they were not citizens in the strict sense.
52. However, what is necessary to be taken note is that
the right which was bestowed through the Notifications
dated 11-4-2005 and 5-1-2009 insofar as the educational
parity, including in the matter of appearing for the All
India pre-medical test or such other tests to make them
eligible for admission has been completely altered. Though
the notification ex facie may not specify retrospective
application, the effect of superseding the earlier notifications
and the proviso introduced to Clause 4(ii) would make the
impugned Notification dated 4-3-2021 “retroactive” insofar
as taking away the assured right based on which the
petitioners and similarly placed persons have altered their
position and have adjusted the life’s trajectory with the
hope of furthering their career in professional education.
59. Therefore, in that perspective, keeping in view
the present position, the decision to supersede the
earlier notifications and take away the right of OCI
cardholders in whose favour such right had accrued
and they have acted in a manner to take benefit of
such right should not have been nullified without
reference to the consequences. Having undertaken
the entire educational career in India or at least the High
School onwards, they cannot at this stage turn back to the
country in which they were born to secure the professional
education as they would not be in a position to compete
with the students there either, keeping in view the study
pattern and the monetary implication.
65. In the above circumstance, keeping in view, the object
with which the 1955 Act was amended so as to provide the
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benefit to Overseas Citizen of India and in that context
when rights were given to the OCI cardholders through
the notifications issued from time to time, based on
which the OCI cardholders had adopted to the same
and had done things so as to position themselves
for the future, the right which had accrued in such
process could not have been taken away in the present
manner, which would act as a “retroactive” notification.
Therefore, though the notification ex facie does not specify
retrospective operation, since it retroactively destroys the
rights which were available, it is to be ensured that such of
those beneficiaries of the right should not be affected by
such notification. Though the rule against retrospective
construction is not applicable to statutes merely
because a part of the requisite for its action is drawn
from a time antecedent to its passing, in the instant
case the rights were conferred under the notification
and such rights are being affected by subsequent
notification, which is detrimental and the same should
be avoided to that extent and be allowed to operate
without such retroactivity.
66. We note that it is not retrospective inasmuch as it does
not affect the OCI cardholders who have participated in
the selection process, have secured a seat and are either
undergoing or completed the MBBS course or such other
professional course. However, it will act as retroactive
action to deny the right to persons who had such right
which is not sustainable to that extent. The goal post is
shifted when the game is about to be over. Hence we
are of the view that the retroactive operation resulting
in retrospective consequences should be set aside
and such adverse consequences is to be avoided.
67. Therefore in the factual background of the issue
involved, to sum up, it will have to be held that though
the impugned Notification dated 4-3-2021 is based on
a policy and in the exercise of the statutory power
of a Sovereign State, the provisions as contained
therein shall apply prospectively only to persons who
are born in a foreign country subsequent to 4-3-2021
[2025] 11 S.C.R. 193
Vijaya Kumari S & Another v. Union of India
i.e. the date of the notification and who seek for a
registration as OCI cardholder from that date since
at that juncture the parents would have a choice to
either seek for citizenship by descent or to continue
as a foreigner in the background of the subsisting
policy of the Sovereign State.”
(Emphasis supplied)
16. Though said in the context of the saving clause “except as respect
things done or omitted to be done before such supersession” in
the 04.03.2021 notification, the principles flowing from Anushka
Rengunthwar (supra) have a great bearing on the interpretation
placed by us on the Act and particularly to Section 4(iii)(c)(I).
17. Anushka Rengunthwar (supra) was a case where the students
had studied in India, and when they were all set to write the exam
to qualify as doctors and to compete for the seats similar to Indian
citizens, a new disability intervened. For those who commenced
the process, the Court granted the relief by interpreting 04.03.2021
notification prospectively and recognizing certain rights to have
inhered to the students in view of the legal regime in place before
the notification of 04.03.2021.
18. Earlier a majority of this Court in a case with an identical saving
clause as in Anushka Rengunthwar (supra) held as under in M/s
Universal Imports Agency v. The Chief Controller of Imports
and Exports2:-
“16. What were the “things done” by the petitioners
under the Pondicherry law? The petitioners in
the course of their import trade, having obtained
authorization for the foreign exchange through their
bankers, entered into firm contracts with foreign
dealers on C.I.F. terms. In some cases irrevocable
Letters of Credit were opened and in others bank drafts
were sent towards the contracts. Under the terms of
the contracts the sellers had to ship the goods from
various foreign ports and the buyers were to have
physical delivery of the goods after they had crossed
2 [1961] 1 SCR 305 : 1960 SCC OnLine SC 42
194 [2025] 11 S.C.R.
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the customs barrier in India. Pursuant to the terms of
the contracts, the sellers placed the goods on board
the various ships, some before and others after the
merger, and the goods arrived at Pondicherry port after
its merger with India. The prices for the goods were
paid in full to the foreign sellers and the goods were
taken delivery of by the buyers after examining them
on arrival. Before the merger if the Customs Authorities
had imposed any restrictions not authorised by law,
the affected parties could have enforced the free entry
of the goods in a court of law. On the said facts a short
question arises whether para 6 of the Order protects the
petitioners. While learned counsel for the petitioners
contends that “things done” take in not only things
done but also their legal consequences, learned
counsel for the State contends that, as the goods
were not brought into India before the merger, it was
not a thing done before the merger and, therefore,
would be governed by the enactments specified in
the Schedule. It is not necessary to consider in this case
whether the concept of import not only takes in the factual
bringing of goods into India, but also the entire process
of import commencing from the date of the application
for permission to import and ending with the crossing of
the customs barrier in India. The words “things done”
in para 6 must be reasonably interpreted and, if so
interpreted, they can mean not only things done but
also the legal consequences flowing therefrom. If
the interpretation suggested by the learned counsel for
the respondents be accepted, the saving clause would
become unnecessary. If what it saves is only the executed
contracts i.e. the contracts whereunder the goods have
been imported and received by the buyer before the merger,
no further protection is necessary as ordinarily no question
of enforcement of the contracts under the pre-existing law
would arise. The phraseology used is not an innovation
but is copied from other statutory clauses. Section 6 of
the General clauses Act (10 of 1897) says that unless a
different intention appears, the repeal of an Act shall not
affect anything duly done or suffered thereunder. So too,
[2025] 11 S.C.R. 195
Vijaya Kumari S & Another v. Union of India
the Public Health Act of 1858 (38 & 39 Vict. c. 55) which
repealed the Public Health Act of 1848 contained a proviso
to Section 343 to the effect that the repeal “shall not affect
anything duly done or suffered under the enactment hereby
repealed”, This proviso came under judicial scrutiny in
Queen v. Justices of the West Riding of Yorkshire [(1876)
1 QBD 220]. There notice was given by a local board of
health of intention to make a rate under the Public Health
Act, 1848, and amending Acts. Before the notice had
expired these Acts were repealed by the Public Health
Act, 1875, which contained a saving of “anything duly
done” under the repealed enactments, and gave power
to make a similar rate upon giving a similar notice. The
board, in ignorance of the repeal, made a rate purporting
to be made under the repealed Acts. It was contended that
as the rate was made after the repealing Act, the notice
given under the repealed Act was not valid. The learned
Judges held that as the notice was given before the Act,
the making of the rate was also saved by the words
“anything duly done” under the repealed enactments. This
case illustrates the point that it is not necessary that
an impugned thing in itself should have been done
before the Act was repealed, but it would be enough
if it was integrally connected with and was a legal
consequence of a thing done before the said repeal.
Under similar circumstances Lindley, L.J., in Heston and
Isleworth Urban District Council v. Grout [(1897) 2 Ch 306]
confirmed the validity of the rate made pursuant to a notice
issued prior to the repeal. Adverting to the saving clause,
the learned Judge tersely states the principle thus at p.
313:“That to my mind preserves that notice and the effect
of it”. On that principle the court of appeal held that the
rate which was the effect of the notice was good.
18. Nor can we find any justification for the second
criticism. In the instant case the legal position is exactly
the same. By reason of the Indo-French Agreement
the Government of India made the Order under the
Foreign Jurisdiction Act applying the Indian laws to
Pondicherry, The effect of that Order was that the
French laws were repealed by the application of the
196 [2025] 11 S.C.R.
Supreme Court Reports
Indian laws in the same field occupied by the French
laws subject to a saving clause. The position is
analogous to that of a statute repealing another with
a saving clause. If the English decisions apply to the
latter situation, we do not see how they do not apply
to the former. In both the cases the pre-existing law
continues to govern the things done before a particular
date. We, therefore, hold that the words “things done”
in para 6 of the Order are comprehensive enough to
take in a transaction effected before the merger, though
some of its legal effects and consequences projected
into the post-merger period.”
(Emphasis supplied)
19. As already discussed, no doubt, the above paragraphs were said
in the context of an existing saving clause in the notification in
question. However, the ratio of Anushka Rengunthwar (supra)
and Universal Imports Agency (supra) have a great bearing on
the present cases while grappling with the concept of vested rights
and understanding the same.
20. Additionally for the reasons stated above, I endorse the operative
directions in the judgment given by my learned Sister.
Result of the case: Writ petitions and application allowed.
†
Headnotes prepared by: Nidhi Jain
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