Supreme Court Rules Against Retrospective Application of Age Limit in Surrogacy Law

PTI, New Delhi, October 9, 2025 : The Supreme Court of India, in a significant ruling on Thursday, stated that concerns related to parenting and gamete quality cannot be considered compelling reasons for the retrospective application of the Surrogacy (Regulation) Act, 2021. The court’s judgment emphasizes that since the law permits certain categories of couples to conceive naturally despite concerns over age and gamete quality, it is not necessary to apply the age restrictions retroactively.

A bench of Justices B.V. Nagarathna and K.V. Viswanathan delivered the verdict, clarifying that the age limits prescribed under the Act would not apply to couples who had already commenced surrogacy procedures before the law came into effect on January 25, 2022. The ruling specifically pertains to those who had started procedures like the freezing of embryos prior to the enactment of the law.

The central government had argued that age limits should be applied retrospectively due to concerns over the declining quality of gametes as individuals age and the potential impact on children born through surrogacy. However, the bench noted that before the law’s enactment, there were no binding regulations or certifications regarding age restrictions for couples seeking surrogacy. The court further observed that, while concerns about gamete quality may be valid, they are not sufficient to warrant a retrospective application of the law.

“On the basis of concerns over gamete quality, the law does not fetter couples who wish to bear children naturally,” the bench stated. The judges also highlighted that there is no age bar for couples wishing to adopt children under the Hindu Adoptions and Maintenance Act, 1956, which applies to certain intending couples. The court emphasized that such concerns, while potentially legitimate, do not justify applying the law retrospectively, particularly when the state allows natural conception despite similar concerns.

The bench also acknowledged that the Surrogacy (Regulation) Act, 2021, includes a provision requiring intending couples to obtain an "eligibility certificate" confirming that they are married and within the prescribed age limits: 23 to 50 years for women and 26 to 55 years for men. The court addressed petitions filed by three couples who sought clarification on the application of the age limits, particularly the upper age limit, under the Act.

In its ruling, the Supreme Court clarified that there is no clear intention within the provisions of the Act to apply the age restrictions retroactively. Therefore, it is not permissible to impose these limits on couples who had already initiated the surrogacy process before the law came into effect. This judgment is a crucial one for intending couples, particularly those affected by the new age limits and the retrospective application of the surrogacy regulations.