Surrogacy age limit doesn't apply to couples who froze embryos before 2021 law: Allahabad High Court

The Allahabad High Court recently held that the age restriction under the Surrogacy (Regulation) Act, 2021 cannot be applied to couples who had created and frozen embryos before the law came into force [Anshu Shukla and Another v. Union of India and Another].

A Bench of Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary ruled that such retrospective application would interfere with the couple’s reproductive autonomy, which forms part of the right to personal liberty under Article 21 of the Constitution.

“The rigid application of age restriction under Surrogacy (Regulation) Act, 2021 infringes the fundamental right of the reproductive autonomy recognized as a part of personal liberty under Article 21 of the Constitution of India,” the Court said.

Section 4(iii)(c)(I) of the Act requires a woman to be between 23 and 50 years old and the man to be between 26 and 55 years old to qualify for surrogacy.

However, the Court held that this restriction would not apply where the couple had initiated the surrogacy process before the Act came into force on January 25, 2022.

The Court was hearing a petition by a couple who had been married for over 17 years but could not conceive naturally despite undergoing fertility treatment. Successive embryo transfers had also failed, following which medical practitioners advised them to pursue surrogacy.

The couple then preserved three embryos on July 18, 2015. However, by the time they sought to proceed with surrogacy, the wife crossed the statutory upper age limit of 50 years.

They, therefore, approached the High Court seeking permission to pursue altruistic surrogacy notwithstanding the age restriction.

The petitioners relied on the Supreme Court’s decision in Vijaya Kumari S v. Union of India, which held that the creation and freezing of embryos crystallises an intending couple’s decision to pursue surrogacy.

The Supreme Court had ruled that once embryos are frozen for surrogacy, there is no further step to be taken by the couple themselves to demonstrate their intention.

In the judgment passed on July 7, the High Court also referred to Supreme Court’s decision in Arun Muthuvel v. Union of India, where relief was granted to an intending couple who had frozen embryos before the Surrogacy Act came into force.

In view of these rulings, the High Court held that the statutory age restriction was not applicable to the petitioners.

Thus, it permitted the couple to move forward with the surrogacy process and apply to the appropriate authority or the Chief Medical Officer, Lucknow under Section 35 of the Act within three weeks.

The authority was directed to hear them and pass a reasoned order after considering the Supreme Court’s rulings and the provisions of the Act.

The petitioners were represented by advocates Rohan Pathak and Vineet Mani Tripathi.

Deputy Solicitor General of India SB Pandey assisted by advocate Harsha Yadav appeared for the Union government.

Additional Chief Standing Counsel Pankaj Khare represented the State.

[Read Judgment]