While granting relief to a couple who initiated the surrogacy procedure prior to the enforcement of the Surrogacy (Regulation) Act, 2021, the Allahabad High Court has held that the rigid application of age restriction under the Act infringes the fundamental right of reproductive autonomy recognized as a part of personal liberty under Article 21 of the Constitution.

The High Court was considering a writ petition filed under Article 226 of the Constitution wherein the writ petitioner sought permission to proceed with altruistic surrogacy despite the age limitation imposed under Section 4(iii)(v)(c)(I) of the Surrogacy Act, 2021.

The Division Bench of Justice Abdhesh Kumar Chaudhary and Justice Shekhar B. Saraf held, “Upon considering the arguments advanced by learned counsel for the petitioners as well as by learned counsel for the Union of India, we are of the view that 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. Hon'ble Supreme Court in similar circumstances, wherein fertility treatment was started prior to the enforcement of the Surrogacy Act has granted relief to an intending couple who has frozen embryo prior to January 25, 2022 in the case of Arun Muthuvel Vs. Union of India reported in 2024…”.

Advocate Rohan Pathak represented the Petitioner while Additional Solicitor General of India represented the Respondent.

Factual Background

The petitioners have been legally wedded for more than 17 years and, unfortunately, despite fertility treatment, were unable to conceive naturally and had to undergo an In Vitro Fertilisation (IVF) procedure. It was submitted that even the said In Vitro Fertilisation procedure was not promising in the sense that successive embryo transfer failed, as they were unsuccessful attempts at conception. As per the petitioners, in consideration of their precarious medical condition to conceive naturally, they were advised by the Medical Practitioners to pursue surrogacy.

The petitioner (wife) was aged a little more than 50 years, and since she exceeded the age limit prescribed under the said provisions of the Surrogacy Act, which came into force on January 25, 2022, she was unable to avail the assistance of surrogacy.

Reasoning

Considering the facts of the case and the arguments raised, the Bench was not in favor of giving a rigid application of the age restriction under the Surrogacy (Regulation) Act, 2021, saying that the same infringed the fundamental right of reproductive autonomy recognised under Article 21 of the Constitution.

Referring to the judgment in Vijaya Kumari S & another v. Union of India reported in (2025), and considering that the petitioners initiated the surrogacy procedure prior to the enforcement of the Act, the Bench held that Section 4 (iii) (v) (c) (I) of the Act was not applicable to the petitioners.

The Bench thus allowed the petitioners to move forward with the surrogacy process and permitted them to file a proper application before the appropriate authority/Chief Medical Officer, Lucknow in terms of Section 35 of the Surrogacy Act, 2021. “If such an application is filed within a period of three weeks from date, the authority concerned is directed to grant an opportunity of hearing to the petitioner, and thereafter, pass a reasoned order keeping in view the various judgements of the Hon'ble Supreme Court on the subject of the surrogacy as well as the Surrogacy Act, 2021”, it ordered.

Cause Title: Anshu Shukla v. Union Of India (Neutral Citation: 2026:AHC-LKO:43965-DB)

Appearance

Petitioner: Advocates Rohan Pathak, Vineet Mani Tripathi

Respondent: Additional Solicitor General Of India, Chief Standing Counsel

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Allahabad High CourtJustice Abdhesh Kumar ChaudharyJustice Shekhar B. Saraf

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.