New Delhi: Couples who opted for surrogacy and froze their embryos before the Surrogacy (Regulation) Act of 2021 was enforced will not be bound by the age restriction clause in the law, the Supreme Court (SC) pronounced on Thursday.
Giving significant relief to such couples, a bench of Justices BV Nagarathana and KV Vishwanathan emphasised that a law is deemed to have only a prospective application unless it is explicitly expressed or is implied through the use of language.
Even if the law has to be interpreted to give it a retrospective operation, it cannot be done to restrict or curtail a right conferred on the citizens.
The Surrogacy (Regulation) Act mandates that the woman must be between 23 and 50 years of age and a man between 26 and 55 years to opt for surrogacy. This age restriction is underlined in section 4(iii)(c)(I) of the Act that came into effect on 25 January 2022. As per the government, the age limit is crucial for the medical safety and long-term care of the child.
In this case, the SC held, the intending couples’ constitutional right to have a child under Article 21—which protects the fundamental right to life and personal liberty—would be impinged with a retrospective operation of the law that cannot be countenanced. This right was unfettered when they commenced the process of surrogacy.
The judgement came on petitions filed by three couples who had crossed the upper age limit specified in the law and were unable to complete the surrogacy process due to the law’s enactment.
The petitioners argued they had begun the surrogacy procedure prior to the notification of the Act. If they had known about or anticipated the enforcement of such a law with stringent criteria, they would have specifically made sure to pursue surrogacy procedures (beyond the freezing of embryos) before crossing the age bar.
With the verdict in their favour now, intending couples who had initiated the process for surrogacy, but were technically barred because they crossed the statutory age limit, can now proceed with the procedure.
However, with the court defining the process of surrogacy, only those couples who were at the threshold of Stage B, which is when the embryo is frozen, would get the relief.
According to the bench, those who 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 would get the benefit of the judgement.
Couples who had visited the surrogacy clinic, got counselling, obtained various permissions or certificates from appropriate authorities and even extracted the gametes would not be covered under this ruling.
“The intending couples have a constitutional right which was unfettered when they commenced the process of surrogacy. The same can be curtailed only by reasonable restrictions and by not interpreting the Act unfairly, so as to completely curtail their constitutional right to surrogacy which was unfettered by the Act not giving a retrospective or even a retroactive effect to the Act under consideration,” the court held.
A right in existence at the passing of a statute
To allow a retrospective operation of the law would not just frustrate the surrogacy procedure, but also their right to have a surrogate child or become parents, with the latter being a constitutional right under Article 21 of the Constitution.
Though the judgement shared its concern over mandating age as an eligibility criterion to undertake surrogacy, it did not deliver its final opinion on it, considering the petitions raising larger legal and constitutional questions over some sections of the 2021 law are still pending.
The bench reasoned that the Act was enforced when the intending couples were in the midst of the procedure, at a crucial phase, that is at the stage of creation of embryos and freezing them.
This was a manifestation of their intention to become parents. And, since there was no age restriction then, they continued with the process.
The court ordered that the petitioners before it are exempted from seeking certification on the qualifying age for the purpose of continuing the surrogacy procedure, provided they satisfy the other conditions under the Act and the rules made thereunder.
For other similarly placed intending couples, who have a grievance with regard to age restrictions, the judgement said they may approach high courts, instead of directly moving the top court.
Dwelling on the legal principle regarding retrospective application of the law, the bench asserted the cardinal principle of construction, which is “every statute is generally prospective unless it is made retrospective either expressly or by necessary implication”.
The term “necessary implication” can have a retrospective operation depending on the use of legal fiction or by necessary implication.
Hence, it explained, presumption of prospectivity operates unless the contrary is expressed in the statute itself or is otherwise discernible by necessary implication.
“Another principle flowing from presumption against retrospectivity is that “one does not expect rights conferred by the statute to be destroyed by events which took place before it was passed”, the court added.
In other words, a right in existence at the passing of the statute cannot be impacted by its provisions retrospectively in the absence of an express enactment or necessary intendment.
“Thus, any statute which takes away or impairs vested rights acquired under existing laws or, inter alia, attaches a new disability in respect of a transaction already passed, must be presumed to be intended not to have a retrospective effect,” the judgement held.
(Edited by Gitanjali Das)