Surrogacy Act Does Not Affect Rights Vested In Couples Who Froze Embryos Before Law Took Effect : Justice Viswanathan's Concurring Judgment

The Supreme Court held that couples who had frozen embryos for surrogacy before the Surrogacy (Regulation) Act, 2021 came into effect on January 25, 2022, had acquired vested rights to surrogacy which the Act could not retrospectively take away.Justice KV Viswanathan, in his concurring opinion, said that by completing the fertilisation process before the statutory cut-off date, the couples had already crossed a legally recognised threshold, and the later introduction of age limits under Section 4(iii)(c)(I) of the Act could not invalidate their position.“by the fertilization of the embryo prior to 25.01.2022, certain rights inhered in the intending couple and the Surrogacy (Regulation) Act, 2021 (for short 'the Act') does not divest them of those rights”, he said.The judge made these observations in his opinion concurring with Justice BV Nagarathna that couples who had frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on January 25, 2022, could proceed with surrogacy despite crossing the upper age limits prescribed under the Act.The 2021 law stipulates that the intending woman must be between 23 and 50 years of age and the man between 26 and 55 years. The case arose from petitions filed by couples who had begun the surrogacy process before the law came into effect, and sought eligibility certificates under the new Act.Justice KV Viswanathan agreed with the view taken by Justice B.V. Nagarathna that the 2021 Act cannot operate retrospectively to bar such couples from proceeding.Before the 2021 Act came into force, there was no legal age limit for intending parents under any law or executive instruction. The only policy in place was the 2005 National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India issued by the Indian Council of Medical Research, which regulated donors and surrogates but did not impose an age limit on intending couples.Justice Viswanathan noted that at a time when no disability existed, the petitioners exercised their liberty and certain rights vested in them once they completed the fertilisation stage.Citing Salmond on Jurisprudence, Justice Viswanathan said the term “right” in its wider sense includes liberty – things a person may do without being prevented by law. When the petitioners fertilised embryos before any statutory restriction, they acted within that liberty, and those rights could not be retrospectively taken away by introducing age limits in Section 4(iii)(c)(I) of the Surrogacy Act.He distinguished between vested rights, contingent rights, and mere hope (spes), holding that the couples' parenthood was not just a hope but a vested right since the gamete extraction and freezing of embryos had already taken place.The Centre argued that only those cases could be protected that were covered under Section 53 of the Act – a transitional clause providing a ten-month gestation period from the commencement of the Act to protect existing surrogate mothers.Rejecting this contention, Justice Vishwanathan held that the clause “operates in its own sphere” and does not make the Act retrospective so as to divest vested rights.“As we construe the Act, vested rights are not divested, and the new disability created will not apply to cases like that of the petitioners (intending couples), and their rights do not stand neutralised”, he said.Drawing parallels from Anushka Rengunthwar v. Union of India, where the Court had held that a later notification could not retroactively destroy rights already accrued under an earlier policy, Justice Viswanathan said the same principle applied to the petitioners. In that case, Overseas Citizens of India had begun studying under one policy which considered them at par with Indian citizens for eligibility to medical seats under NEET. The Court held that they were entitled to continue despite a later change that restricted their eligibility to competing for Non-Resident Indian. Similarly, Justice Vishwanathan said, couples who had fertilised embryos before the 2021 Act could not be deprived of their rights by a later statutory disability.Justice Viswanathan concluded that the Surrogacy Act could not retrospectively impose age-based disqualifications on couples who had fertilised embryos before January 25, 2022, and concurred with the operative directions issued in Justice Nagarathna's judgment.Case no. – W.P.(C) No. 756/2022 and connected casesCitation : 2025 LiveLaw (SC) 990Case Title – Arun Muthuvel v. Union of India and connected casesClick Here To Read/Download Order

Surrogacy Act Does Not Affect Rights Vested In Couples Who Froze Embryos Before Law Took Effect : Justice Viswanathan's Concurring Judgment

Amisha Shrivastava

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