The Allahabad High Court's Lucknow Bench has permitted a married couple to continue with the surrogacy process despite the wife being over the maximum age prescribed under the Surrogacy (Regulation) Act, 2021. The Court held that the age restriction could not be applied retrospectively because the couple had frozen their embryos years before the law came into force.
Background of the Case
The petitioners told the Court that they had been married for more than 17 years and had undergone several fertility treatments after being unable to conceive naturally. Multiple IVF attempts failed, but three embryos were successfully created and frozen on July 18, 2015.
When they later decided to opt for altruistic surrogacy, they faced a legal hurdle because the wife had crossed the upper age limit of 50 years prescribed under Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021.
A Division Bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary relied on recent Supreme Court rulings holding that the creation and freezing of embryos before the Surrogacy Act came into force represents the commencement of the surrogacy process.
The Bench observed,
“The rigid application of age restriction under the Surrogacy (Regulation) Act, 2021 infringes the fundamental right of reproductive autonomy recognized as a part of personal liberty under Article 21 of the Constitution of India.”
The Court further noted that since the petitioners had initiated the surrogacy process before January 25, 2022, the statutory age bar could not be enforced against them retrospectively.
Allowing the writ petition, the High Court held that the age restriction under Section 4 of the Surrogacy (Regulation) Act, 2021 would not apply to the petitioners. The Court permitted them to submit an application before the Chief Medical Officer, Lucknow, under Section 35 of the Act.
It directed the competent authority to provide the petitioners an opportunity of hearing and pass a reasoned order after considering the Surrogacy Act, 2021 and the Supreme Court's judgments governing the issue.
Case Details
Case Title: Anshu Shukla and Another v. Union of India
Case Number: Writ - C No. 6292 of 2026
Judge: Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary
Decision Date: July 7, 2026
