The Allahabad High Court has held that the statutory age restrictions under the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively to intending couples who had completed the process of creating and freezing embryos before the legislation came into force. The Court observed that a rigid application of the age criteria in such cases would infringe the fundamental right to reproductive autonomy, which forms an integral part of the right to life and personal liberty guaranteed under Article 21 of the Constitution.
The Division Bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary passed the ruling while allowing a writ petition filed by a couple who had been married for more than 17 years but were unable to conceive naturally despite undergoing extensive fertility treatment, including multiple In Vitro Fertilisation (IVF) procedures. As successive embryo transfers failed, medical experts advised them to opt for altruistic surrogacy.
The petitioners submitted that they qualified as an “intending couple” under Section 2(r) of the Surrogacy (Regulation) Act, 2021. However, by the time they sought to proceed with surrogacy, the wife had crossed the statutory upper age limit of 50 years prescribed under Section 4(iii)(c)(I) of the Act. Under the provision, a woman must be between 23 and 50 years of age and a man between 26 and 55 years to be eligible for surrogacy as an assisted reproductive treatment.
The couple informed the Court that they had successfully created and cryopreserved three embryos on July 18, 2015, several years before the Surrogacy (Regulation) Act came into force on January 25, 2022. They contended that the surrogacy process had effectively commenced before the enactment of the legislation and, therefore, the subsequent statutory age restriction could not be applied retrospectively to defeat their right to become parents.
In support of their case, the petitioners relied on recent decisions of the Supreme Court, as well as judgments of the Delhi High Court and the Punjab and Haryana High Court. The High Court referred to the Supreme Court’s rulings in Vijaya Kumari S. v. Union of India and Arun Muthuvel v. Union of India, which clarified that, for the limited purpose of determining eligibility under the Surrogacy Act, the surrogacy process commences when an intending couple completes gamete extraction, fertilisation and freezes embryos with the clear intention of transferring them to a surrogate mother.
The Supreme Court had held that once embryos are frozen for surrogacy, the intending couple’s right to pursue parenthood crystallises under the legal regime prevailing at that time. It further observed that where no statutory age restriction existed at the stage of embryo creation, the subsequently enacted age limits under the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively, as doing so would violate the constitutional protection of reproductive autonomy and parenthood under Article 21.
Relying on these precedents, the Allahabad High Court held that the statutory age bar under Section 4(iii)(c)(I) could not be enforced against the petitioners, as they had initiated the surrogacy process and preserved embryos long before the Act came into force. The Court observed that retrospective application of the provision would amount to an unreasonable restriction on the petitioners’ fundamental rights.
Accordingly, the High Court permitted the couple to proceed with the altruistic surrogacy process. It directed them to submit an application before the competent authority or the Chief Medical Officer, Lucknow, under Section 35 of the Surrogacy (Regulation) Act, 2021 within three weeks.
The Court further directed the competent authority to provide the petitioners with an opportunity of hearing and thereafter pass a reasoned and speaking order in accordance with the provisions of the Act and the legal principles laid down by the Supreme Court governing surrogacy and reproductive rights.
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