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) 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 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:
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]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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