Arun Muthuvel ,Vijaya Kumari S vs Union of India 2025 INSC 1209 - Surrogacy (Regulation) Act

Surrogacy (Regulation) Act, 2021- Section 4(iii)(c)(I) -For intending couples who undertook surrogacy procedures prior to the Act, age-related considerations were entirely their prerogative and as explained earlier, an exercise of their rights under Article 21 of the Constitution (Para 13.9)- If an intending couple had - (i) commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and (ii) were at the stage of creation of embryos and freezing after extraction of gametes (Stage A of the diagram); and (iii) on the threshold of transfer of embryos to the uterus of the surrogate mother (Stage B of the diagram) The age restriction under Section 4(iii)(c)(I) of the Act would not apply. The competent authority, on being satisfied about the aforesaid conditions (i), (ii) and (iii) above shall issue the certification provided Rule 14 of the Rules are satisfied by the intending couples. (Para 16) ‘commencement’ of the surrogacy process for the limited purpose of determining when the age-limits under the Act must be applied prospectively and not retrospectively takes place after the intending couple has completed the extraction and fertilisation of gametes and has frozen the embryo with an intention to and for the purposes of, transfer to the womb of the surrogate mother. (Para 14.3)

Legislation -A piece of Central Legislation comes into operation on the day it receives Presidential assent and is generally construed as coming into operation immediately on the expiration of the day preceding its commencement. (Para 15.1)

Interpretation of Statutes - Retrospective and Prospective nature- Every statute is generally prospective unless it is made retrospective either expressly or by necessary implication - any statute which takes away or impairs vested rights acquired under existing laws or, inter alia, attaches a new disability in respect of transaction already passed, must be presumed to be intended not to have a retrospective effect. Therefore, a statute cannot be construed to have a retrospective operation than what the language desires it to be necessary. Further, a statute need not have an express provision to make it retrospective as by necessary implication a statute can have a retrospective operation depending on the use of legal fiction or by necessary implication. (Para 15.2) The classification of a statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. (Para 15.5)

Section 4 (iii)(c)(I) Surrogacy (Regulation) Act Doesn’t Have Retrospective Operation: Supreme Court Permits Couples To Continue Surrogacy

The legal question arising out of the writ petitions in question before the Supreme Court was regarding the age restriction on intending couples under Section 4 (iii)(c)(I) of the Surrogacy Regulation…

VerdictumTulip Kanth