In light of the Apex Court’s ruling in Vijaya Kumari S Vs. Union of India [(2025) SCC OnLine SC 2195] and the settled principle against retrospective operation of statutes, the Allahabad High Court (Lucknow Bench) has held that since the petitioner couple had initiated the surrogacy procedure prior to the enforcement of the Act, Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021 is not applicable to them. The freezing of embryos prior to the Act’s commencement constitutes crystallisation of the couple’s intention to pursue surrogacy, and the age bar cannot be permitted to operate so as to frustrate their constitutional right to parenthood.
The Division Bench comprising Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary observed that the rigid application of the age restriction under the Surrogacy (Regulation) Act, 2021 to couples who had already initiated the surrogacy process, including freezing embryos, prior to the Act’s enforcement, infringes the fundamental right of reproductive autonomy, which is recognised as a facet of personal liberty under Article 21 of the Constitution of India.
The Court further noted that the Supreme Court, in Arun Muthuvel v. Union of India [2024 SCC OnLine SC 140], had already granted relief in similar circumstances to an intending couple who had frozen embryos prior to 25 January 2022.
Briefly, the petitioners, a married couple of over 17 years, were unable to conceive naturally despite undergoing multiple rounds of In Vitro Fertilization (IVF), all of which failed. On medical advice, they pursued surrogacy as the only viable path to parenthood. Crucially, the couple had preserved three embryos as far back as 18 July 2015, well before the Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022.
The petitioner No. 1 (wife), however, had crossed the age of 50 years by the time she sought to proceed with surrogacy. Under Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021, a female must be between 23 to 50 years of age to be eligible for surrogacy as an intending couple. This age bar effectively shut the door on the couple’s surrogacy plans, despite their embryos having been frozen years before the Act was enacted.
