4 min readLucknowUpdated: Jul 15, 2026 10:35 AM IST
A couple married for over 17 years and unable to have children, despite undergoing In Vitro Fertilisation (IVF), has secured some relief from the Allahabad High Court, which held that rigidly applying the Surrogacy Act’s age limit would infringe a woman’s fundamental right to reproductive autonomy.
It directed the Chief Medical Officer (CMO) of Lucknow to hear the couple’s application and issue a reasoned order.
The couple had approached the court as the Surrogacy (Regulation) Act, 2021, does not allow a woman exceeding the age of 50 to opt for the procedure. They said three embryos had been preserved on July 18, 2015, well before the Act came into force. As the woman had crossed the age limit, they could not pursue surrogacy.
In its order dated July 7, a division bench on Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary stated, “We are of the view that rigid application of the age restriction under Surrogacy (Regulation) Act, 2021, infringes the fundamental right of reproductive autonomy recognised as a part of personal liberty under Article 21 of the Constitution of India.”
It also noted that the Supreme Court granted relief to a couple who had initiated fertility treatment and frozen embryos before the Surrogacy Act came into force on January 25, 2022.
‘Opted for IVF, but it failed’
The couple, represented by advocates Rohan Pathak and Vineet Mani Tripathi, sought permission to proceed with altruistic surrogacy despite the age limitation.
In their petition, they stated that they were unable to conceive and opted for IVF — that, too, failed. “In consideration of their precarious medical condition to conceive naturally, they have been advised by doctors to pursue surrogacy,” their counsel submitted.
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Advocate Pathak told The Indian Express that the couple had not approached the CMO as their application was not eligible to be heard due to the age factor.
The counsel argued that the petitioners qualify as an “intending couple” under Section 2(r) of the Surrogacy (Regulation) Act, 2021, but are aggrieved by the upper age limit prescribed under Section 4(iii)(v)(c)(I), which requires the woman to be between 23 and 50 years of age and the man between 26 and 55 years.
In the present case, the wife is over 50 years old.
The counsel further informed the court that three embryos had been preserved by the petitioners on July 18, 2015, but they were not able to achieve parenthood through assisted reproductive methods because of the age factor. Medical prescriptions were placed before the court in support of the claim.
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What the court said
After hearing the submissions, the bench stated in its order, “Considering that the petitioners initiated the surrogacy procedure prior to the enforcement of the Act, this court is of the considered opinion that Section 4 (iii) (v) (c) (I) of the said Act is not applicable” to them.
The order stated that the petitioners are allowed to move forward with the surrogacy process.
“… they are permitted 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 various judgments of the Hon’ble Supreme Court on the subject of surrogacy as well as the Surrogacy Act, 2021,” it said.
