Section 4 Surrogacy Act: Allahabad High Court Says Age Bar Won't Apply To Pre-2022 Surrogacy Process

The Allahabad High Court has allowed a couple to proceed with altruistic surrogacy despite the wife having crossed the maximum age prescribed under the Surrogacy (Regulation) Act, 2021, holding that the statutory age restriction cannot be applied retrospectively to couples who had initiated the surrogacy process before the law came into force.

A division bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held that rigid application of the age restriction under the Act would violate the couple's reproductive autonomy, which is protected as part of the fundamental right to personal liberty under Article 21 of the Constitution.

The petition was filed by a couple married for more than 17 years. According to their plea, they were unable to conceive naturally and underwent in vitro fertilisation (IVF). However, repeated embryo transfer attempts failed. Doctors subsequently advised them to opt for surrogacy.

The couple argued that although they fulfilled the definition of an "intending couple" under the Surrogacy (Regulation) Act, the wife had crossed the upper age limit of 50 years prescribed under Section 4(iii)(v)(c)(I) after the law came into force in January 2022. As a result, they were being denied the opportunity to pursue surrogacy despite having begun the process years earlier.

Importantly, the petitioners informed the court that three embryos had already been created and frozen on July 18, 2015, much before the Surrogacy Act came into force on January 25, 2022. They contended that the subsequent age restriction should not defeat their long-standing effort to become parents.

Surrogacy Act age limit cannot operate retrospectively

While hearing the case, the Bench relied on the Supreme Court's judgments in Vijaya Kumari S. v. Union of India (2025) and Arun Muthuvel v. Union of India (2024), which recognised that couples who had completed embryo creation and freezing before the enactment of the Surrogacy Act could not be denied surrogacy solely because they later crossed the statutory age limit. The petitioners also relied on similar decisions of the Delhi High Court and the Punjab and Haryana High Court.

Referring to these precedents, the high court observed that the creation and freezing of embryos represents a significant stage in the surrogacy process, reflecting the intending couple's clear intention to pursue parenthood. Therefore, applying the age restriction introduced later would amount to giving the law retrospective effect, which is impermissible.

The bench further observed that a rigid application of the statutory age restriction "infringes the fundamental right of the reproductive autonomy recognised as a part of personal liberty under Article 21 of the Constitution of India". It noted that the Supreme Court had already granted relief in similar circumstances where fertility treatment had commenced before the Surrogacy Act came into force.

What relief did the high court grant?

Holding that Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021 would not apply to the petitioners, the high court permitted them to move forward with the surrogacy process. It allowed the couple to submit an application before the Chief Medical Officer, Lucknow, under Section 35 of the Act within three weeks.

Court directed the competent authority to provide the petitioners an opportunity of hearing and thereafter pass a reasoned order after considering the Surrogacy Act and the Supreme Court's judgments governing the issue. With these directions, the writ petition was disposed of.

Case Title: Abc vs. UOI and Another

Judgment Date: July 7, 2026

Bench: Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary