Supreme Court Holds Surrogacy Age Limits Cannot Apply Retrospectively to Couples Who Had Already Begun the Process

In Vijaya Kumari S & Another v. Union of India, decided with connected matters, the Supreme Court held that the age restrictions in Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 do not retrospectively disqualify intending couples who had already commenced the surrogacy process before the Act came into force on 25 January 2022.

What the Supreme Court decided

The Court considered whether the statutory age limits introduced by the Surrogacy (Regulation) Act, 2021 could be applied to intending couples who had taken material steps toward surrogacy before the Act commenced. The couples before the Court had already undergone procedures leading to fertilisation and freezing of embryos before 25 January 2022.

Age limits under the Surrogacy (Regulation) Act, 2021

Section 4(iii)(c)(I) requires an intending couple to satisfy prescribed age conditions on the date of certification. The intending woman must be between 23 and 50 years of age, while the intending man must be between 26 and 55 years of age.

These age limits continue to govern fresh applications under the Act. The Supreme Court's ruling is important because it protects pre-existing cases where the surrogacy process had already materially commenced before the statutory regime took effect.

When had the surrogacy process commenced?

A major issue was whether the petitioners could be treated as having commenced surrogacy merely because embryos had been created and frozen before the Act came into force, even though implantation in a surrogate had not yet occurred. The Supreme Court accepted that the process had already begun at that stage for the petitioners before it.

Reproductive autonomy and Article 21

The judgment places the dispute within the broader constitutional protection afforded to reproductive choice and personal autonomy under Article 21 of the Constitution. It builds on earlier constitutional jurisprudence recognising decisional autonomy in matters concerning reproduction, bodily integrity and privacy.

The Court therefore refused to allow a later statutory restriction to retrospectively extinguish the position of couples who had already acted under the legal regime then prevailing and had progressed to the stage of embryo creation and freezing.

Effect of the judgment

The judgment does not invalidate the age limits in Section 4(iii)(c)(I). Instead, it limits their temporal operation. Couples commencing the surrogacy process after the Act came into force remain subject to the statutory eligibility conditions. The relief applies to the pre-Act factual situations considered by the Court and similarly situated cases that satisfy the legal test laid down in the judgment.

Current surrogacy law in 2026

The Surrogacy (Regulation) Act, 2021 remains the principal legislation governing surrogacy in India, together with the Surrogacy (Regulation) Rules, 2022 and subsequent amendments. The Central Government notified the Surrogacy (Regulation) Amendment Rules, 2026 in June 2026. Those amendments update the regulatory framework but do not alter the statutory age limits in Section 4(iii)(c)(I).

Intending couples should therefore check the Act, the currently applicable Rules, eligibility and medical-certification requirements, and directions of the appropriate authority before proceeding.

Why the judgment matters

The decision clarifies an important transitional issue under India's surrogacy law: a new eligibility restriction cannot automatically be applied backward to undo a surrogacy process that had already commenced before the statutory regime took effect. It also reinforces the constitutional importance of reproductive autonomy while preserving the prospective operation of the age-limit provisions.

Official legal sources

The judgment and current statutory materials are available from the official Supreme Court and Government of India sources below.

Legal information reviewed and updated on 5 September 2026. Eligibility for surrogacy depends on the statutory provisions, current rules, medical and regulatory requirements, and the facts of the individual case.