VIJAYA KUMARI S & ANOTHER versus UNION OF INDIA

Citation: [2025] 11 S.C.R. 136 · Decided: 09-10-2025 · Supreme Court of India · Bench: B.V. NAGARATHNA · Disposal: Case Allowed

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Judgment (excerpt)

[2025] 11 S.C.R. 136 : 2025 INSC 1209
Vijaya Kumari S & Another
v.
Union of India
(Writ Petition (Civil) No. 331 of 2024)
09 October 2025
[B.V. Nagarathna* and K.V. Viswanathan,* JJ.]
Issue for Consideration
Issue arose whether the age-restrictions u/s.4(iii)(c)(I) of Surrogacy 
(Regulation) Act, 2021 should be applied to intending couples, all 
of whom had commenced the surrogacy process, to the extent of 
having their embryos frozen, before the enforcement of the Act.
Headnotes†
Surrogacy (Regulation) Act, 2021 – s.4(iii)(c)(I) – Regulation 
of surrogacy and surrogacy procedures – Application of the 
age-restrictions on ‘intending couples’ u/s.4(iii)(c)(I) who had 
frozen their embryos, before the enforcement of the Act – Act 
of 2021 Act came into force wef 25.01.2022, whereby the upper 
age limit fixed for the intending couple by s.4(iii)(c)(I), the female 
cannot be over and above 50 years of age and the male cannot 
be over and above 55 years of age – Petitioners-intending 
couples had commenced the surrogacy procedures-completed 
the Stage A process (freezing of embryos) prior to the date 
of enforcement of the Act – However, the Act brought in an 
embargo in the form of the age-limit and petitioners barred from 
continuing the surrogacy procedure post the enforcement of 
the Act – Age-related restrictions, if applicable retrospectively 
to the petitioners-intending couples availing surrogacy: 
Held: If an intending couple had commenced the surrogacy 
procedure prior to the commencement of the Act i.e., 25.01.2022; 
and were at the stage of creation of embryos and freezing after 
extraction of gametes; and on the threshold of transfer of embryos 
to the uterus of the surrogate mother, the age restriction u/s.4(iii)(c)
(I) would not apply – Competent authority, on being satisfied about 
the said conditions shall issue the certification provided r.14 of the 
Rules are satisfied by the intending couples – Thus, s.4(iii)(c)(I) 
* Author
[2025] 11 S.C.R. 
137
Vijaya Kumari S & Another v. Union of India
does not have retrospective operation and would not apply to the 
petitioners-intending couples – At the time the intending couples 
generated and froze their embryos, they had qualified for surrogacy 
under the prevailing law, thus, they came to possess a right to 
surrogacy as a part of reproductive autonomy and parenthood – 
Before the enforcement of the Act-25.01.2022, there were no binding 
laws, certifications, etc. regarding age restrictions on intending 
couples-petitioners wishing to avail surrogacy – Thus, for couples 
the (statutory) age limits under the Act, the right to access surrogacy 
or their entitlement to surrogacy was not conditional on their age 
and was freely available to couples under the prevailing law – Right 
to surrogacy as a facet of autonomy u/Art.21 was unrestricted prior 
to the enforcement of the Act – Right to decide that despite one’s 
age, one wishes to have children through surrogacy, was afforded 
to intending couples u/Art.21 prior to the enforcement of the Act – 
Intending couples commenced the process of surrogacy, to the 
extent of freezing their embryos in preparation for transfer to the 
womb of the surrogate mother – It cannot be said that intending 
couples, who are above the prescribed age-limits under the Act, 
will not be able to effectively parent their children – It is not for the 
State to question the couple’s ability to parent children after they had 
begun the exercise of surrogacy when there were no restrictions 
on them to do so – For intending couples who undertook surrogacy 
procedures prior to the Act, age-related considerations were entirely 
their prerogative and an exercise of their rights u/Art.21 – Since 
there is no manifest intention in the provisions of the Act to apply 
the age-limits retrospectively, the same is not permissible – Right 
to surrogacy vested in intending couples prior to the enforcement 
of the Act, was a constitutionally recognized right which continues 
to be so recognized but subject to reasonable restrictions with a 
view to obviate exploitation of surrogate mothers through a process 
of commercial surrogacy – Thus, such a constitutional right cannot 
be taken away retrospectively from them on account of their age, 
without an express intention to do so under the Act – Constitution 
of India – Art.21. [Paras 13, 13.9, 13.13, 16]
Per K.V. Viswanathan, J. (Concurring): At a time when there 
was no disability attached, the petition

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