Allahabad High Court: Embryos Frozen Before Surrogacy Act Not Hit by Later Age Limits, Upholds Reproductive Rights

July 14, 2026 : The Allahabad High Court has ruled that the age restrictions prescribed under the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively to couples who had already created and cryopreserved embryos before the law came into force. The Court held that applying the statutory age bar in such cases would violate the fundamental right to reproductive autonomy, which is protected under Article 21 of the Constitution.

A Division Bench comprising Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary delivered the judgment while allowing a writ petition filed by a couple who had remained childless despite being married for over 17 years and undergoing several rounds of fertility treatment, including multiple In Vitro Fertilisation (IVF) procedures. After repeated embryo transfer failures, doctors advised the couple to pursue altruistic surrogacy.

The petitioners informed the Court 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.

The couple pointed out that they had created and frozen three embryos on July 18, 2015, nearly seven years before the Surrogacy (Regulation) Act came into force on January 25, 2022. They argued that the surrogacy process had effectively commenced at the time of embryo creation and cryopreservation, making the subsequent age restrictions inapplicable to their case.

While examining the matter, the High Court relied on recent Supreme Court judgments, including Vijaya Kumari S. v. Union of India and Arun Muthuvel v. Union of India. The Supreme Court had clarified that, for determining eligibility under the Surrogacy Act, the surrogacy process begins once gamete extraction, fertilisation and embryo freezing are completed with the intention of transferring the embryos to a surrogate mother.

The apex court had further held that once embryos are cryopreserved for surrogacy, the intending couple’s right to pursue parenthood crystallises under the legal framework existing at that time. Therefore, age restrictions introduced later through the Surrogacy (Regulation) Act, 2021 cannot be applied retrospectively, as doing so would infringe the constitutional guarantee of reproductive autonomy and the right to parenthood under Article 21.

Applying these principles, the Allahabad High Court concluded that the petitioners had initiated the surrogacy process well before the enactment of the 2021 legislation. Consequently, the statutory age bar under Section 4(iii)(c)(I) could not be enforced against them, as retrospective application would impose an unreasonable restriction on their fundamental rights.

The Court accordingly permitted the couple to proceed with altruistic surrogacy. It directed them to submit an application under Section 35 of the Surrogacy (Regulation) Act, 2021 before the competent authority or the Chief Medical Officer, Lucknow, within three weeks.

The Court also directed the competent authority to grant the petitioners an opportunity of hearing and thereafter pass a reasoned and speaking order in accordance with the Act and the legal principles laid down by the Supreme Court on surrogacy and reproductive rights.