Supreme Court rules age limit under surrogacy act won’t apply to couples who froze embryos before 2022

Court upholds reproductive autonomy, says age restriction under 2021 law cannot be applied retrospectively

October 9, 2025

SC exempts pre-2022 embryo cases from surrogacy age limit

Court upholds reproductive autonomy, says age restriction under 2021 law cannot be applied retrospectively

In a landmark ruling, the Supreme Court of India has held that the age restrictions under the Surrogacy (Regulation) Act, 2021, will not apply to couples who had frozen their embryos before the law came into effect on January 25, 2022, according to a report by LiveLaw.

A bench comprising Justice BV Nagarathna and Justice KV Viswanathan observed that such couples had already established their right to surrogacy under the legal framework prevailing at that time, which did not impose an age limit. The judges stated that this right is part of the reproductive autonomy and parenthood guaranteed to all individuals.

The court clarified that its decision does not address the validity of the age restrictions prescribed in the Act but rather their retrospective application to couples who had initiated the surrogacy process before the law came into force and were later disqualified on age grounds.

Under the current law, surrogacy is allowed only if the wife is aged between 23 and 50 years and the husband between 26 and 55 years.

The ruling was delivered while hearing a petition involving three couples affected by the age restriction clause. The court further directed that other couples in similar circumstances may approach their respective high courts for relief based on this judgment.

Defining the commencement of surrogacy, the bench said the process begins when gametes are extracted and embryos are frozen. “By this stage, the intending couple has taken all substantial steps to crystallise their intention to undergo surrogacy,” the court held.

Rejecting the Union government’s argument for applying the age limits retrospectively—based on the suitability of older parents—the court ruled that it is not the state’s prerogative to assess parenting capability, especially when no such age limits exist for natural conception.

“In the present case, the parenting capabilities of the couple are being used to assail their eligibility to have children through surrogacy. It is not for the state to question the couple’s ability to parent children after they had begun the surrogacy process when there were no restrictions on them to do so,” the bench observed.

The ruling is expected to offer significant relief to several couples who had initiated the surrogacy process before 2022 but faced disqualification due to the introduction of age restrictions.

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