Surrogacy Act | Age Limits Inapplicable If Intending Couple Froze Embryos Prior To Enforcement Of Law: Allahabad High Court

A bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary observed that a rigid application of age restriction under the Law infringes the fundamental right of the reproductive autonomy recognized as a part of personal liberty under Article 21 of the Constitution of India.

For context, as per Section 4 (iii) (v) (c) (1) of the Act, a male must be between 26 to 55 years of age and a female must be between 23 to 50 years of age to be eligible for surrogacy as an advanced fertility treatment.

Case in brief

The Court was dealing with a writ petition filed by a couple who had been legally wedded for more than 17 years but were unable to conceive naturally despite receiving extensive fertility treatments.

They underwent multiple In Vitro Fertilization (IVF) procedures, but successive embryo transfers resulted in unsuccessful attempts at natural conception. Consequently, considering their "precarious medical condition", they were advised by medical professionals to pursue surrogacy and, hence, moved to the HC.

Before the High Court, the couple submitted that they qualify as an "intending couple" under Section 2(r) of the Surrogacy Act.

However, since the wife is a little more than 50 years old, she exceeded the age limit prescribed under Section 4(iii)(v)(c)(1) of the Act and hence, could not avail the assistance of surrogacy

It was, however, submitted that the couple had successfully preserved three embryos on July 18, 2015, and the Surrogacy Act subsequently came into force on January 25, 2022.

The counsel for the petitioners' relief upon the Delhi High Court's order in Tapas Kumar Mallick and another Vs. Union of India and another 2026 and Punjab and Haryana High Court's order in Shobhini Mala vs Union Of India And Another 2026, as well as the Supreme Court's judgment in Arun Muthuvel Vs. Union of India 2025 LiveLaw (SC) 990.

In the Arun Mutuvel (supra) case, the Apex Court had clarified that for the limited purpose of determining age limits, the surrogacy process commences the moment an intending couple completes gamete extraction, fertilization, and freezes the embryo with the clear intent of transferring it to a surrogate mother.

The bench had held that the right to surrogacy of such couples crystallised when they had their embryos frozen under the law prevailing at the time (before commencement of the Surrogacy Act, when there was no age limit) as a part of reproductive autonomy and parenthood, and the age restriction under the Act cannot apply retrospectively to such couples.

The bench had also stressed that when no statutory age restriction exists at the stage of embryo creation, the rules cannot be permitted to operate retrospectively, as doing so would fail to uphold the constitutional right of intending couples to become parents under Article 21.

Considering the Supreme Court Judgment, the bench concluded that the statutory age bar under Section 4(iii)(v)(c)(1) cannot be sustained against the petitioners.

Hence, the High Court allowed the couple to move forward with the altruistic surrogacy process.

The petitioners were permitted to file a proper application before the appropriate authority/Chief Medical Officer, Lucknow, in terms of Section 35 of the Surrogacy Act, 2021.

The Court added that if such an application is filed within a period of 3 weeks, the authority concerned will grant an opportunity of hearing to the petitioner, and thereafter, pass a reasoned order keeping in view the various judgements of the Supreme Court on the subject of surrogacy as well as the Surrogacy Act, 2021.

Advocates Rohan Pathak and Vineet Mani Tripathi appeared for the petitioners.

Case Title - Anshu Shukla And Another Versus Union Of India, Ministry Of Health And Family Welfare Deptt. Thru. Secy. New Delhi And Another 2026 LiveLaw (AB) 406