Supreme Court on Retrospective Application of Surrogacy Act

Supreme Court on Retrospective Application of Surrogacy Act: The Fault Lines in Regulation

On October 10, 2025, the Supreme Court delivered a pivotal judgment declaring that the age and eligibility restrictions under the Surrogacy (Regulation) Act, 2021, cannot be applied retrospectively to couples who had frozen embryos and initiated the surrogacy process before the law came into effect. This verdict illuminates the critical tension between legislative intent and constitutional safeguards surrounding reproductive rights, yet exposes deeper cracks in the Act’s design.

The Policy Dilemma

At the heart of this case lies the conflicting imperatives of regulation and autonomy. On one side is the State’s rationale to curb exploitative commercial surrogacy practices through stringent restrictions. On the other, affected couples argue that these very restrictions infringe their vested rights and compromise personal liberties enshrined under Article 21 of the Constitution. The Court’s ruling reflects the doctrine of fairness—it clarified that applying restrictive conditions retrospectively undermines legal certainty and individual dignity.

The Surrogacy Act: Framework and Restrictions

The Surrogacy (Regulation) Act, 2021 introduced sweeping controls to regulate surrogacy in India. Its provisions strictly permit only altruistic surrogacy—where no monetary compensation is exchanged beyond medical expenses—while prohibiting commercial surrogacy entirely. Key eligibility criteria for intending couples and surrogates underscore its restrictive nature:

• For intending couples: They must be Indian citizens, married for at least 5 years, and meet age restrictions (23–50 years for women; 26–55 years for men).
• For surrogates: A surrogate must be aged between 25–35 years, married, and already have at least one biological child.

The Act also establishes institutional architecture through National and State Surrogacy Boards and Appropriate Authorities tasked with licensing clinics, ensuring ethical compliance, and penalizing violations. Violations of the Act’s provisions, including engaging in commercial surrogacy, carry stringent penalties—up to 10 years’ imprisonment and ₹10 lakh fines.

Making the Case for the Supreme Court’s Position

Proponents of the judgment have grounded their arguments in constitutional rights and principles of justice. The Court rightly invoked the doctrine of fairness, which prohibits retrospective application of laws that impair vested rights or impose new burdens. Couples who had begun the surrogacy process or frozen embryos in anticipation of later use had made reproductive decisions based on then-prevailing legal norms. To upend these decisions with retrospective legislative barriers would constitute a breach of legal certainty.

Furthermore, the Court connected surrogacy regulation to the broader discourse of bodily autonomy and reproductive rights as affirmed in K.S. Puttaswamy v. Union of India (2017). Reproductive autonomy is an inherent part of the right to privacy under Article 21—allowing individuals to decide if, when, and how they want to parent. The Court also stressed the gendered impact: restrictive eligibility disproportionately affects women, who already face biological constraints coupled with societal pressures.

The Critique: A Law Too Narrow for Complex Realities

While the Supreme Court’s judgment addresses the unfairness of retrospective application, the larger issue lies in the Act’s structural inadequacies. The strict age caps and medical infertility requirements for intending couples ignore evolving family dynamics, such as single individuals or same-sex couples seeking parenthood—a glaring exclusion given progressive global trends. The insistence on altruistic surrogacy alone has faced criticism for its impracticality; expecting women to bear the physical and emotional burdens of surrogacy without compensation is inequitable and unrealistic.

The institutional machinery also raises operational questions. National and State Surrogacy Boards, charged with overseeing ethical compliance, remain underfunded and understaffed. As per a 2023 report by the Ministry of Health and Family Welfare, less than 15% of clinics performing Assisted Reproductive Technology (ART) are licensed—a figure that underscores enforcement challenges even after the Act’s passage.

Moreover, the political economy of reproductive healthcare complicates implementation. The prohibition on commercial surrogacy has potentially forced the practice into opaque channels, exacerbating exploitation rather than curbing it. The irony here is that while altruistic surrogacy aims to remove monetary exploitation, it unwittingly reinforces gendered burdens on women without fair recompense.

Lessons from International Practices

A useful comparison is with Ukraine, one of the few countries to allow compensated surrogacy alongside stringent regulation. Ukraine mandates comprehensive contracts between surrogates and intending couples, ensures health insurance for surrogates during and post-pregnancy, and explicitly allows foreign couples to access surrogacy services. While critics argue this commodifies reproduction, the outcomes are telling: Ukraine has clear procedural safeguards preventing exploitation, with minimal reported cases of surrogacy abuse.

India’s altruistic-only model takes the opposite approach—it bars compensation altogether, assuming that altruism alone will prevent exploitation. However, unintended effects, such as informal commercial arrangements, suggest that prohibitive models often fail where transparency is lacking. This is a policy gap that warrants urgent recalibration.

Where Things Stand

The Supreme Court's judgment is a necessary corrective against legal inequity, but the broader framework of the Surrogacy Act remains flawed. Intentions to eliminate exploitation are laudable but misplaced; reproductive rights deserve nuanced regulation, not restrictive prohibitions. Institutional weaknesses—underfunded boards, insufficient enforcement—must be addressed if the Act is to achieve any semblance of efficacy. The focus must shift to enabling informed, equitable choices without gendered or financial exploitation. It is too early to tell whether the judgment will force legislative revisions or remain an isolated case of judicial intervention.

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