Introduction:
In a crucial judgment reaffirming the right to reproductive autonomy and the importance of fairness in the application of newly enacted laws, the Delhi High Court, in Tapas Kumar Mallick & Anr v. Union of India & Anr., permitted an intending couple to proceed with their surrogacy process despite the husband being above the prescribed age limit under the Surrogacy (Regulation) Act, 2021. Justice Sachin Datta ruled that since the couple had initiated their surrogacy procedure prior to the enforcement of the Act, the statutory age bar stipulated under Section 4(iii)(v)(c)(I) would not be applicable in their case. The Court emphasized that a mechanical or retrospective application of the age criterion would unjustly deprive the couple of their long-pursued aspiration to become parents, especially when their efforts began before the legal restrictions took effect. The decision marks another milestone in the evolving jurisprudence on reproductive rights, autonomy, and the constitutional balance between regulation and individual liberty in matters of parenthood.
Arguments on Behalf of the Petitioners:
The petitioners, represented by their counsel, placed before the Court a deeply personal and legally significant plea. The husband, aged 57 years, and the wife, aged 42 years, had been undergoing infertility treatments for several years. After multiple unsuccessful attempts at conception, including numerous In Vitro Fertilization (IVF) cycles, medical experts advised them to opt for surrogacy as the only remaining viable path to parenthood. Acting upon this advice, the couple formally initiated the surrogacy process on January 6, 2021, well before the Surrogacy (Regulation) Act, 2021 came into force on January 25, 2022.
The petitioners argued that despite their bona fide efforts and timely initiation of the process, they were unfairly rendered ineligible due to the enactment of the new law that introduced an upper age limit for intending couples. Under Section 4(iii)(v)(c)(I) of the Act, the woman seeking surrogacy must be between 23 and 50 years, and the man between 26 and 55 years. The husband, being 57 years of age, was therefore excluded from eligibility solely on account of the two-year difference, even though the couple had embarked on their surrogacy journey before the Act came into force.
The petitioners’ counsel contended that applying the Act retrospectively, to disqualify individuals who had initiated legitimate surrogacy arrangements before its enforcement, would be contrary to principles of fairness and legal certainty. They relied on Article 14 of the Constitution to argue that such mechanical exclusion amounted to arbitrary discrimination, as it penalized individuals for acts that were lawful at the time they were undertaken. The petitioners further invoked Article 21, asserting that the right to parenthood and reproductive autonomy is an integral part of the right to life and personal liberty.
Counsel also drew the Court’s attention to the recent judgment of the Delhi High Court in Vijaya Kumari S v. Union of India (2024), where the Court had held that procedural or eligibility restrictions under the Surrogacy Act cannot be retrospectively applied to those who had begun the process before the Act’s commencement. Relying on this precedent, the petitioners argued that they stood on similar footing, and thus the statutory age bar must not be imposed upon them. They emphasized that surrogacy, being a long, medically guided process, involves months of consultations, approvals, and procedures, which could not be summarily halted midway due to a change in the legal landscape.
Moreover, the petitioners submitted that reproductive decisions lie within the intimate personal sphere of individuals and couples, and the State must exercise restraint in interfering with such choices unless there exists a compelling public interest. They urged the Court to interpret the statute in a manner that harmonizes legislative intent with fundamental rights rather than in a way that leads to injustice and denial of parenthood to genuine couples.
Arguments on Behalf of the Respondents:
On behalf of the Union of India, counsel defended the validity and applicability of Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021, arguing that the legislative intent behind imposing age restrictions was to ensure ethical and medically safe surrogacy practices. The respondents contended that age criteria were based on expert recommendations designed to protect both the surrogate and the child’s welfare, given the potential medical, psychological, and social risks involved in late-age parenthood.
The government maintained that surrogacy is not merely a private contractual arrangement but one that implicates public health considerations, societal ethics, and the rights of the surrogate mother and child. Hence, the Act’s restrictions must be read as mandatory and binding on all intending couples, regardless of when they initiated the process. The respondents argued that granting exemptions on individual grounds could open the floodgates for similar claims, undermining the uniform application of the law.
Additionally, the respondents stated that since the Act does not contain any specific transitional provision to protect cases initiated before its commencement, all ongoing or prospective surrogacy processes must comply with the new requirements. The State emphasized that Parliament’s objective was to regulate and streamline surrogacy, prevent commercialization, and ensure the health and rights of all parties involved. Any deviation or relaxation, they warned, might set an undesirable precedent that could weaken the regulatory framework and defeat the Act’s purpose.
However, when questioned about the specific prejudice or harm that would result from exempting the petitioners—given that their process began before the law’s enforcement—the respondents were unable to demonstrate any compelling public interest. They insisted, nevertheless, that adherence to the statutory provisions was essential for maintaining legal consistency and protecting the sanctity of the regulatory regime.
Court’s Observation and Findings:
Justice Sachin Datta, after hearing both sides and carefully reviewing the statutory provisions, constitutional principles, and precedents, rendered a detailed and compassionate judgment. The Court began by acknowledging the petitioners’ long struggle with infertility and their bona fide initiation of the surrogacy process before the enforcement of the Surrogacy (Regulation) Act, 2021. The Court noted that the Act came into force on January 25, 2022, whereas the couple had initiated their surrogacy journey on January 6, 2021—more than a year earlier.
Referring to Section 4(iii)(v)(c)(I), which prescribes the age criteria for intending couples, the Court observed that while the provision mandates that the man should not exceed 55 years and the woman not exceed 50 years, the question before the Court was whether this restriction could operate retrospectively upon those who had already commenced the process.
Justice Datta relied heavily on the decision in Vijaya Kumari S v. Union of India, where the Court had held that couples who had initiated surrogacy prior to the Act’s enforcement cannot be subjected to its procedural and eligibility constraints. Drawing parallels, the Court concluded that “since the petitioners initiated the surrogacy procedure prior to the enforcement of the Act, Section 4(iii)(v)(c)(I) shall not be applicable to them.”
The Court reasoned that laws affecting substantive rights cannot be applied retrospectively unless explicitly stated in the legislation. Preventing the couple from proceeding would not only contravene the principle of fairness but also infringe their fundamental right to reproductive autonomy under Article 21. The Court held that the right to reproduction, including access to assisted reproductive technologies and surrogacy, forms part of an individual’s personal liberty and privacy, which the State cannot curtail arbitrarily.
Justice Datta further noted that reproductive choices are deeply personal decisions protected under the constitutional guarantee of dignity and autonomy. While the legislature may impose reasonable restrictions for ethical or medical reasons, such restrictions must operate prospectively and cannot nullify actions lawfully undertaken before the law’s enforcement.
Addressing the argument of public interest, the Court observed that no tangible harm or adverse consequence was demonstrated by the respondents in allowing the petitioners to proceed with surrogacy. The statutory purpose of ensuring ethical surrogacy and protection against exploitation would not be undermined by granting relief in such an exceptional case.
Consequently, the Court held that the petitioners were entitled to proceed with the surrogacy process notwithstanding the husband’s age exceeding the prescribed limit. The Court also clarified that while they are exempt from obtaining the eligibility certification concerning age, they must nonetheless comply with all other statutory requirements under the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022.
The Court’s concluding observation was profound: the law must be interpreted with a sense of justice that respects both legislative intent and human aspiration. Where the rigid application of law leads to disproportionate hardship or defeats the very essence of fairness, constitutional principles must prevail. The decision thus strikes a balance between statutory regulation and the protection of individual rights within the domain of reproductive health and family formation.
Court’s Judgment:
In view of the above findings, the Delhi High Court allowed the petition and permitted the couple to proceed with their surrogacy arrangement, exempting them from the age eligibility restriction under Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021. Justice Sachin Datta observed that the legislative intent was not to retrospectively penalize couples who had initiated legitimate surrogacy procedures before the enactment of the law. The Court directed that the petitioners need not obtain an eligibility certificate regarding age, provided they fulfill all other conditions prescribed under the Act and the Rules of 2022.
The judgment reaffirms the judiciary’s commitment to safeguarding personal liberty, autonomy, and equality, ensuring that statutory laws do not operate in an oppressive or unjust manner. It also sets a crucial precedent for interpreting the surrogacy law in harmony with constitutional guarantees of fairness and human dignity.