LAW FOR ALL : A. Surrogacy (Regulation) Act, 2021 — S. 4(iii)(c)(I), S. 53 — Applicability — Prospective or Retrospective Operation — Determination — Held, age restrictions prescribed under S. 4(iii)(c)(I) (female 23–50 years; male 26–55 years) for “intending couples” seeking surrogacy apply prospectively and not retrospectively. — Intending couples who had commenced the surrogacy procedure prior to enforcement of the Act (25-01-2022), and had reached the stage of creation and freezing of embryos (Stage A), possess a vested right to continue the procedure notwithstanding the subsequent age bar. — S. 53, providing a ten-month transitional protection to “existing surrogate mothers”, cannot be read to extinguish the vested rights of intending couples who had already initiated medical procedures before the Act came into force. — Hence, such couples are exempted from the age qualification under S. 4(iii)(c)(I) and may proceed with surrogacy subject to fulfilment of other statutory and medical conditions under Rule 14 of the Surrogacy (Regulation) Rules, 2022. [Paras 9–17, 15.8–15.10, 16, 18] B. Constitution of India — Art. 21 — Right to Life — Right to Reproductive Autonomy — Scope and Content — Held, the right to reproductive autonomy includes the right of a woman and a couple to decide if, when, and how to have children, including through assisted methods such as surrogacy. — Prior to the enforcement of the Act, there were no statutory restrictions on age or eligibility; thus, intending couples enjoyed an unrestricted constitutional right to pursue surrogacy as an exercise of reproductive autonomy under Art. 21. — The Act, though regulatory in nature, cannot be retrospectively applied to stultify or extinguish such constitutionally recognised rights once exercised. [Paras 12–12.7, 13.4–13.8, 15.10] C. Interpretation of Statutes — Retrospective Operation — Presumption Against Retrospectivity — Principles Restated — Held, every statute is prima facie prospective, unless the legislative intention to make it retrospective is express or necessarily implied. — No express or implied intention in the Surrogacy Act to apply the age restrictions retrospectively; thus, the presumption of prospectivity prevails. — Statute affecting vested rights or imposing new disabilities cannot be construed retrospectively unless explicitly mandated. — Applied principles from CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India, (2006) 2 SCC 740; K. Gopinathan Nair v. State of Kerala, (1997) 10 SCC 1; State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307; Zile Singh v. State of Haryana, AIR 2004 SC 5100. [Paras 7.1.1, 13.9, 15–15.8] D. Surrogacy — Meaning of “Commencement” of Surrogacy Procedure — When it Begins — Determination — Held, for the limited purpose of determining retrospectivity, “commencement” of the surrogacy procedure occurs when gametes have been extracted, fertilised, and embryos frozen with a bona fide intention of transfer to the surrogate womb. — The completion of this step crystallises the intending couple’s right to proceed with surrogacy. — The absence of involvement of a surrogate mother at that stage does not negate the commencement, since the couple has completed all stages within their control. [Paras 14–14.4] E. Constitutional Law — Transformative Constitutionalism — Scope — Held, the concept of transformative constitutionalism supports judicial interpretation that furthers evolving reproductive rights and social realities; laws regulating surrogacy must align with constitutional values of individual autonomy, dignity, and equality. [Paras 7.1.6, 12.1–12.5] F. Surrogacy (Regulation) Rules, 2022 — Rule 14 — “Medical Indications Necessitating Gestational Surrogacy” — Applicability — Held, petitioners in the present cases (three intending couples) prima facie satisfy Rule 14 medical conditions warranting surrogacy — such as recurrent implantation failure, uterine abnormalities, hypertension, and failed IVF attempts — and the Union of India did not dispute such necessity. [Paras 10–10.1] G. Legislative Intent and Object — Surrogacy (Regulation) Act, 2021 — Object of the Act — Held, object of the Act is to regulate and prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy; not to frustrate legitimate, bona fide efforts of intending couples who had commenced lawful procedures before the Act came into force. [Paras 13.10–13.12] H. Relief and Directions — Writ Petitions Nos. 331 of 2024 and 809 of 2024, and I.A. No.181569 of 2022 in W.P. (C) No.756 of 2022 allowed. — Section 4(iii)(c)(I) of the Act held to be prospective; age-bar not applicable to petitioners/applicants. — Petitioners/applicants exempted from qualifying age certification, subject to satisfaction of other statutory and medical requirements. — Similarly placed intending couples may approach respective jurisdictional High Courts for relief in terms of this judgment. [Paras 17–19] I. Per Viswanathan, J. (Concurring): Additional Reasons — Fertilisation of embryos prior to 25-01-2022 created inherent and vested rights in the intending couples; the Act does not divest such rights. — Prior to the Act, no age limit existed under law; the petitioners acted lawfully within the liberty afforded by the 2005 ICMR Guidelines. — Rights crystallised upon completion of Stage A of surrogacy (creation and storage of embryos). — Distinguished between vested/contingent rights and mere hope (spes) — the couples’ right was vested, not contingent. — Transitional provision under S. 53 operates in its own sphere and cannot be invoked to curtail pre-existing rights. — Applied analogy from Anushka Rengunthwar v. Union of India, (2023) 11 SCC 209 and Universal Imports Agency v. Chief Controller of Imports & Exports, (1961) 1 SCR 305 — “things done” include their legal consequences; vested rights cannot be nullified retroactively. [Concurring paras 2–20] Result: Held, Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 has no retrospective operation — intending couples who had frozen embryos before 25-01-2022 entitled to complete surrogacy procedure irrespective of present age. Writ petitions allowed.

Tuesday, October 14, 2025

A. Surrogacy (Regulation) Act, 2021 — S. 4(iii)(c)(I), S. 53 — Applicability — Prospective or Retrospective Operation — Determination — Held, age restrictions prescribed under S. 4(iii)(c)(I) (female 23–50 years; male 26–55 years) for “intending couples” seeking surrogacy apply prospectively and not retrospectively. — Intending couples who had commenced the surrogacy procedure prior to enforcement of the Act (25-01-2022), and had reached the stage of creation and freezing of embryos (Stage A), possess a vested right to continue the procedure notwithstanding the subsequent age bar. — S. 53, providing a ten-month transitional protection to “existing surrogate mothers”, cannot be read to extinguish the vested rights of intending couples who had already initiated medical procedures before the Act came into force. — Hence, such couples are exempted from the age qualification under S. 4(iii)(c)(I) and may proceed with surrogacy subject to fulfilment of other statutory and medical conditions under Rule 14 of the Surrogacy (Regulation) Rules, 2022. [Paras 9–17, 15.8–15.10, 16, 18] B. Constitution of India — Art. 21 — Right to Life — Right to Reproductive Autonomy — Scope and Content — Held, the right to reproductive autonomy includes the right of a woman and a couple to decide if, when, and how to have children, including through assisted methods such as surrogacy. — Prior to the enforcement of the Act, there were no statutory restrictions on age or eligibility; thus, intending couples enjoyed an unrestricted constitutional right to pursue surrogacy as an exercise of reproductive autonomy under Art. 21. — The Act, though regulatory in nature, cannot be retrospectively applied to stultify or extinguish such constitutionally recognised rights once exercised. [Paras 12–12.7, 13.4–13.8, 15.10] C. Interpretation of Statutes — Retrospective Operation — Presumption Against Retrospectivity — Principles Restated — Held, every statute is prima facie prospective, unless the legislative intention to make it retrospective is express or necessarily implied. — No express or implied intention in the Surrogacy Act to apply the age restrictions retrospectively; thus, the presumption of prospectivity prevails. — Statute affecting vested rights or imposing new disabilities cannot be construed retrospectively unless explicitly mandated. — Applied principles from CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India, (2006) 2 SCC 740; K. Gopinathan Nair v. State of Kerala, (1997) 10 SCC 1; State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307; Zile Singh v. State of Haryana, AIR 2004 SC 5100. [Paras 7.1.1, 13.9, 15–15.8] D. Surrogacy — Meaning of “Commencement” of Surrogacy Procedure — When it Begins — Determination — Held, for the limited purpose of determining retrospectivity, “commencement” of the surrogacy procedure occurs when gametes have been extracted, fertilised, and embryos frozen with a bona fide intention of transfer to the surrogate womb. — The completion of this step crystallises the intending couple’s right to proceed with surrogacy. — The absence of involvement of a surrogate mother at that stage does not negate the commencement, since the couple has completed all stages within their control. [Paras 14–14.4] E. Constitutional Law — Transformative Constitutionalism — Scope — Held, the concept of transformative constitutionalism supports judicial interpretation that furthers evolving reproductive rights and social realities; laws regulating surrogacy must align with constitutional values of individual autonomy, dignity, and equality. [Paras 7.1.6, 12.1–12.5] F. Surrogacy (Regulation) Rules, 2022 — Rule 14 — “Medical Indications Necessitating Gestational Surrogacy” — Applicability — Held, petitioners in the present cases (three intending couples) prima facie satisfy Rule 14 medical conditions warranting surrogacy — such as recurrent implantation failure, uterine abnormalities, hypertension, and failed IVF attempts — and the Union of India did not dispute such necessity. [Paras 10–10.1] G. Legislative Intent and Object — Surrogacy (Regulation) Act, 2021 — Object of the Act — Held, object of the Act is to regulate and prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy; not to frustrate legitimate, bona fide efforts of intending couples who had commenced lawful procedures before the Act came into force. [Paras 13.10–13.12] H. Relief and Directions — Writ Petitions Nos. 331 of 2024 and 809 of 2024, and I.A. No.181569 of 2022 in W.P. (C) No.756 of 2022 allowed. — Section 4(iii)(c)(I) of the Act held to be prospective; age-bar not applicable to petitioners/applicants. — Petitioners/applicants exempted from qualifying age certification, subject to satisfaction of other statutory and medical requirements. — Similarly placed intending couples may approach respective jurisdictional High Courts for relief in terms of this judgment. [Paras 17–19] I. Per Viswanathan, J. (Concurring): Additional Reasons — Fertilisation of embryos prior to 25-01-2022 created inherent and vested rights in the intending couples; the Act does not divest such rights. — Prior to the Act, no age limit existed under law; the petitioners acted lawfully within the liberty afforded by the 2005 ICMR Guidelines. — Rights crystallised upon completion of Stage A of surrogacy (creation and storage of embryos). — Distinguished between vested/contingent rights and mere hope (spes) — the couples’ right was vested, not contingent. — Transitional provision under S. 53 operates in its own sphere and cannot be invoked to curtail pre-existing rights. — Applied analogy from Anushka Rengunthwar v. Union of India, (2023) 11 SCC 209 and Universal Imports Agency v. Chief Controller of Imports & Exports, (1961) 1 SCR 305 — “things done” include their legal consequences; vested rights cannot be nullified retroactively. [Concurring paras 2–20] Result: Held, Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 has no retrospective operation — intending couples who had frozen embryos before 25-01-2022 entitled to complete surrogacy procedure irrespective of present age. Writ petitions allowed.

A. Surrogacy (Regulation) Act, 2021 — S. 4(iii)(c)(I), S. 53 — Applicability — Prospective or Retrospective Operation — Determination

— Held, age restrictions prescribed under S. 4(iii)(c)(I) (female 23–50 years; male 26–55 years) for “intending couples” seeking surrogacy apply prospectively and not retrospectively.

— Intending couples who had commenced the surrogacy procedure prior to enforcement of the Act (25-01-2022), and had reached the stage of creation and freezing of embryos (Stage A), possess a vested right to continue the procedure notwithstanding the subsequent age bar.

— S. 53, providing a ten-month transitional protection to “existing surrogate mothers”, cannot be read to extinguish the vested rights of intending couples who had already initiated medical procedures before the Act came into force.

— Hence, such couples are exempted from the age qualification under S. 4(iii)(c)(I) and may proceed with surrogacy subject to fulfilment of other statutory and medical conditions under Rule 14 of the Surrogacy (Regulation) Rules, 2022.

[Paras 9–17, 15.8–15.10, 16, 18]

B. Constitution of India — Art. 21 — Right to Life — Right to Reproductive Autonomy — Scope and Content

— Held, the right to reproductive autonomy includes the right of a woman and a couple to decide if, when, and how to have children, including through assisted methods such as surrogacy.

— Prior to the enforcement of the Act, there were no statutory restrictions on age or eligibility; thus, intending couples enjoyed an unrestricted constitutional right to pursue surrogacy as an exercise of reproductive autonomy under Art. 21.

— The Act, though regulatory in nature, cannot be retrospectively applied to stultify or extinguish such constitutionally recognised rights once exercised.

[Paras 12–12.7, 13.4–13.8, 15.10]

C. Interpretation of Statutes — Retrospective Operation — Presumption Against Retrospectivity — Principles Restated

— Held, every statute is prima facie prospective, unless the legislative intention to make it retrospective is express or necessarily implied.

— No express or implied intention in the Surrogacy Act to apply the age restrictions retrospectively; thus, the presumption of prospectivity prevails.

— Statute affecting vested rights or imposing new disabilities cannot be construed retrospectively unless explicitly mandated.

— Applied principles from CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India, (2006) 2 SCC 740; K. Gopinathan Nair v. State of Kerala, (1997) 10 SCC 1; State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307; Zile Singh v. State of Haryana, AIR 2004 SC 5100.

[Paras 7.1.1, 13.9, 15–15.8]

D. Surrogacy — Meaning of “Commencement” of Surrogacy Procedure — When it Begins — Determination

— Held, for the limited purpose of determining retrospectivity, “commencement” of the surrogacy procedure occurs when gametes have been extracted, fertilised, and embryos frozen with a bona fide intention of transfer to the surrogate womb.

— The completion of this step crystallises the intending couple’s right to proceed with surrogacy.

— The absence of involvement of a surrogate mother at that stage does not negate the commencement, since the couple has completed all stages within their control.

[Paras 14–14.4]

E. Constitutional Law — Transformative Constitutionalism — Scope

— Held, the concept of transformative constitutionalism supports judicial interpretation that furthers evolving reproductive rights and social realities; laws regulating surrogacy must align with constitutional values of individual autonomy, dignity, and equality.

[Paras 7.1.6, 12.1–12.5]

F. Surrogacy (Regulation) Rules, 2022 — Rule 14 — “Medical Indications Necessitating Gestational Surrogacy” — Applicability

— Held, petitioners in the present cases (three intending couples) prima facie satisfy Rule 14 medical conditions warranting surrogacy — such as recurrent implantation failure, uterine abnormalities, hypertension, and failed IVF attempts — and the Union of India did not dispute such necessity.

[Paras 10–10.1]

G. Legislative Intent and Object — Surrogacy (Regulation) Act, 2021 — Object of the Act

— Held, object of the Act is to regulate and prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy; not to frustrate legitimate, bona fide efforts of intending couples who had commenced lawful procedures before the Act came into force.

[Paras 13.10–13.12]

H. Relief and Directions

— Writ Petitions Nos. 331 of 2024 and 809 of 2024, and I.A. No.181569 of 2022 in W.P. (C) No.756 of 2022 allowed.

— Section 4(iii)(c)(I) of the Act held to be prospective; age-bar not applicable to petitioners/applicants.

— Petitioners/applicants exempted from qualifying age certification, subject to satisfaction of other statutory and medical requirements.

— Similarly placed intending couples may approach respective jurisdictional High Courts for relief in terms of this judgment.

[Paras 17–19]

I. Per Viswanathan, J. (Concurring): Additional Reasons

— Fertilisation of embryos prior to 25-01-2022 created inherent and vested rights in the intending couples; the Act does not divest such rights.

— Prior to the Act, no age limit existed under law; the petitioners acted lawfully within the liberty afforded by the 2005 ICMR Guidelines.

— Rights crystallised upon completion of Stage A of surrogacy (creation and storage of embryos).

— Distinguished between vested/contingent rights and mere hope (spes) — the couples’ right was vested, not contingent.

— Transitional provision under S. 53 operates in its own sphere and cannot be invoked to curtail pre-existing rights.

— Applied analogy from Anushka Rengunthwar v. Union of India, (2023) 11 SCC 209 and Universal Imports Agency v. Chief Controller of Imports & Exports, (1961) 1 SCR 305 — “things done” include their legal consequences; vested rights cannot be nullified retroactively.[Concurring paras 2–20]

Held, Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 has no retrospective operation — intending couples who had frozen embryos before 25-01-2022 entitled to complete surrogacy procedure irrespective of present age. Writ petitions allowed.

2025 INSC 1209

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.331 OF 2024

VIJAYA KUMARI S & ANOTHER …PETITIONERS

Versus

UNION OF INDIA …RESPONDENT

WITH

WRIT PETITION (CIVIL) NO.809 OF 2024

URVASHI & ANOTHER …PETITIONERS

Versus

UNION OF INDIA & ORS. …RESPONDENTS

AND

I.A. NO.181569 OF 2022

WRIT PETITION (CIVIL) NO.756 OF 2022

ARUN MUTHUVEL …PETITIONER

Versus

UNION OF INDIA & OTHERS …RESPONDENTS

IN THE MATTER OF:

SADASIVAM P.

& MOHANAMBAL S. …APPLICANTS

J U D G M E N T

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).

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;

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

(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.

(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 subsection (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 subclause 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 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;

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 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 thirtysix 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 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 certificate of medical and psychological

fitness for surrogacy and surrogacy

procedures from a registered medical

practitioner;

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:

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 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 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 InVitro 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 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 Nos.1, 2 and

3, and learned Additional Solicitor General (ASG) Ms. Aishwarya

Bhati for the 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 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 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 agerestrictions 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 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.

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, 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 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’ 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 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 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, Tshaped uterus) or if the uterus is surgically removed due

to any medical conditions such as gynaecological cancer;

(b) intended parent or woman who has repeatedly failed to

conceive after multiple In vitro fertilization or

Intracytoplasmic sperm injection attempts. (Recurrent

implantation failure);

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 applicantwife 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 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.

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

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 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 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)

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

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.

13.2 Ms. Aishwarya Bhati, learned ASG argued that the agerestrictions 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

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 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 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 agelimits 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.

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.

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 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 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 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 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 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:

“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 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.

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.

……………………………………….J.

(B.V. NAGARATHNA)

……………………………………….J.

(K.V. VISWANATHAN)

NEW DELHI;

OCTOBER 09, 2025.

Page 1 of 19

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 331 OF 2024

SMT VIJAYA KUMARI S & ANR. … Petitioner(s)

VERSUS

UNION OF INDIA … Respondent(s)

With

WRIT PETITION (CIVIL) NO. 809 OF 2024

With

I.A. No. 181569 of 2022

WRIT PETITION (CIVIL) NO. 756 OF 2022

J U D G M E N T

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.

Page 2 of 19

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.

Page 3 of 19

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.”

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: -

Page 4 of 19

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)

Page 5 of 19

“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

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

Page 6 of 19

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 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

Page 7 of 19

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,

Page 8 of 19

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.

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

Page 9 of 19

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.

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,

(2023) 11 SCC 209

Page 10 of 19

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 respondentUnion 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

Page 11 of 19

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 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,

Page 12 of 19

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 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

Page 13 of 19

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 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

Page 14 of 19

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 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)

Page 15 of 19

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

Page 16 of 19

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 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

(1961) 1 SCR 305 = 1960 SCC OnLine SC 42

Page 17 of 19

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, 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

Page 18 of 19

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

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.

Page 19 of 19

20. Additionally for the reasons stated above, I endorse the

operative directions in the judgment given by my learned

Sister.

……….........................J.

[K. V. VISWANATHAN]

New Delhi;

th October, 2025

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