The Supreme Court held that couples who froze embryos for surrogacy before the Surrogacy (Regulation) Act, 2021 came into force had acquired vested rights to pursue surrogacy, and that the Act could not retrospectively divest those rights. Justice K.V. Viswanathan, in his concurring opinion, emphasized that by completing the fertilisation process before the law’s effective date, certain rights crystallised in favour of such couples—rights that the age limits introduced later could not impair. He aligned with the view that couples who had frozen embryos before January 25, 2022 could proceed with surrogacy despite having crossed the upper age thresholds prescribed by the Act.
Viswanathan underscored that prior to the Act, there was no statutory age limit for intending couples. The only existing framework was a 2005 ICMR guideline on assisted reproductive technology, which regulated donors and surrogates but did not impose age restrictions on intending parents. At a time when no legal barrier existed, the couples exercised their liberty and certain rights vested in them upon completing fertilisation. He drew a distinction between vested rights, contingent rights, and mere hope (spes), asserting that in these cases, parenthood was not mere hope: since the couples had undergone the Stage A process (extraction, fertilisation, embryo freezing), their rights had attained a vested character.
Justice Viswanathan rejected the Centre’s argument that only cases covered under Section 53 of the Act—transitional protection for surrogate mothers in mid-gestation—should be protected. He held that Section 53 operates in its own domain and does not render the Act retrospective or divest rights that had already accrued. He insisted that the new statutory disability (the age bar) could not apply to the petitioners and that their rights should not be neutralised. Citing the principle that a statute should not be construed to take away existing rights unless the legislature’s intention is unmistakably clear, he invoked jurisprudence exemplifying that new laws ordinarily operate prospectively, not retrospectively.
Viswanathan observed that the couples had crossed a “legally recognised threshold” by completing fertilisation before January 25, 2022, and that imposing age limits thereafter would be impermissible. He concurred with the operative directions issued in Justice Nagarathna’s majority decision. His opinion firmly supports that rights vested prior to the Act’s enforcement remain secure from retrospective impairment.
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