Surrogacy - Upper age limit under the Act not applicable retrospectively

Delhi High Court Grants Relief to Couple on Surrogacy Age Limit. Court Rules Surrogacy (Regulation) Act's Age Restrictions Not Retrospective for Procedures Initiated Pre-Act

In a significant judgment, the Delhi High Court has allowed a couple to proceed with their surrogacy plans, notwithstanding the husband's age exceeding the limit set by the Surrogacy (Regulation) Act, 2021. The judgment, delivered by Justice Sachin Datta, underscores the non-retrospective application of the Act's age restrictions for couples who commenced their surrogacy process before the Act's enforcement.

The petitioners, Tapas Kumar Mallick and his wife, had embarked on their surrogacy journey before the Act came into force on January 25, 2022. However, the husband's age of 57 exceeded the statutory upper limit of 55 years as per Section 4(iii)(v)(c)(I) of the Act. The couple challenged this age restriction, arguing that it was discriminatory and violated their fundamental right to reproductive autonomy under Article 21 of the Constitution.

The court, acknowledging the couple's efforts and financial investment into the surrogacy process since January 6, 2021, concluded that the age restriction could not be applied retrospectively. The judgment cited precedents where the courts had ruled that legislative changes should not adversely affect those who had initiated procedures under previous legal frameworks.

Justice Datta emphasized that the creation and freezing of embryos prior to the Act's enforcement represented a commitment to surrogacy, which should not be hindered by subsequent legal changes. The court's decision aligns with similar rulings, notably by the Supreme Court in the case of Vijaya Kumari S v. Union of India, which had also supported the non-retrospective application of age restrictions under the Act.

The court's ruling allows the couple to proceed without obtaining the eligibility certification required under the new Act, provided they meet all other conditions outlined in the Surrogacy (Regulation) Rules, 2022.

This judgment reaffirms the judiciary's stance on protecting individuals' reproductive rights and ensuring that legislative changes do not unjustly impede personal autonomy and previous commitments. The decision is expected to have significant implications for other couples in similar situations, offering them a legal precedent to pursue their parenthood aspirations without being constrained by retrospective application of new laws.

Bottom Line:

Surrogacy - Upper age limit prescribed under the Surrogacy (Regulation) Act, 2021 - Age restriction under Section 4(iii)(v)(c)(I) of the Act not applicable retrospectively to intending couples who had initiated the surrogacy procedure prior to the enforcement of the Act - Petitioners allowed to proceed with surrogacy process despite age of petitioner no.1 exceeding prescribed limit.

Statutory provision(s): Surrogacy (Regulation) Act, 2021 Section 4(iii)(v)(c)(I), Constitution of India, 1950 Article 21

Tapas Kumar Mallick v. Union of India, (Delhi) : Law Finder Doc Id # 2803046