Frozen Embryos Before Surrogacy Act Exempt from Age Restrictions

Source: Allahabad High Court

Why in News? 

A Division Bench of the Allahabad High Court, comprising Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary, in Anshu Shukla And Another v. Union Of India (2026), held that couples who had begun the surrogacy process before the enforcement of the Surrogacy (Regulation) Act, 2021, can proceed with surrogacy despite exceeding the statutory age limit prescribed under Section 4(iii)(v)(c)(I) of the Act. 

What was the Background of Anshu Shukla and Another v. Union of India (2026) Case? 

• The petitioners, a couple married for more than 17 years, were unable to conceive naturally despite undergoing extensive fertility treatment. 
• They underwent multiple IVF procedures, but successive embryo transfers failed to result in successful natural conception. 
• On medical advice, considering their precarious medical condition, they were directed to pursue surrogacy and approached the High Court. 
• The couple claimed to qualify as an "intending couple" under Section 2(r) of the Surrogacy Act. 
• However, since the wife was a little over 50 years of age, she exceeded the age limit prescribed under Section 4(iii)(v)(c)(I) of the Act, rendering her ineligible to avail surrogacy. 
• It was submitted that the couple had preserved three embryos on July 18, 2015, well before the Surrogacy Act came into force on January 25, 2022. 
• The petitioners relied on the Delhi High Court's order in Tapas Kumar Mallick v. Union of India (2026), the Punjab and Haryana High Court's order in Shobhini Mala v. Union of India (2026), and the Supreme Court's ruling in Arun Muthuvel v. Union of India, (2025). 

What were the Court's Observations? 

• On reproductive autonomy and Article 21: The Bench held that a rigid application of the age restriction under Section 4(iii)(v)(c)(I) infringes the fundamental right of reproductive autonomy, recognised as a part of personal liberty under Article 21 of the Constitution of India. 
• On when the surrogacy process is deemed to commence: Relying on Arun Muthuvel (supra), the Court reiterated that for the limited purpose of determining age eligibility, the surrogacy process commences the moment an intending couple completes gamete extraction, fertilisation, and freezes the embryo with the clear intent of transferring it to a surrogate mother. 
• On non-retrospective application of the age bar: The Court held that the couple's right to surrogacy crystallised when their embryos were frozen under the law prevailing at the time, when no age limit existed, and that the age restriction under the 2021 Act could not be applied retrospectively to defeat this right. 
• On the constitutional basis for non-retrospectivity: The Bench further stressed that where no statutory age restriction existed at the stage of embryo creation, the Rules could not be permitted to operate retrospectively, as doing so would fail to uphold the intending couple's constitutional right to parenthood under Article 21. 
• On relief granted: Applying the Supreme Court's ruling, the Bench concluded that the statutory age bar under Section 4(iii)(v)(c)(I) could not be sustained against the petitioners and permitted the couple to proceed with the altruistic surrogacy process. 

What is Surrogacy? 

• About: Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s). A surrogate, also called a gestational carrier, is a woman who conceives, carries, and gives birth to a child for the intended parent/s. 
• Altruistic Surrogacy: Involves no monetary compensation to the surrogate mother other than medical expenses and insurance coverage during pregnancy. 
• Commercial Surrogacy: Includes surrogacy or related procedures undertaken for monetary benefit or reward (in cash or kind) exceeding basic medical expenses and insurance coverage. 

What is the Surrogacy (Regulation) Act, 2021? 

• Eligible Persons: A woman who is a widow or divorcee between 35 to 45 years of age, or a couple (defined as a legally married woman and man), can avail surrogacy if they have a medical condition necessitating this option. 
• Eligibility of Intending Couple: The intending couple must be a legally married Indian man and woman; the man must be between 26–55 years and the woman between 25–50 years, and neither must have any previous biological, adopted, or surrogate child. 
• Ban on Commercial Surrogacy: The Act bans commercial surrogacy, which is punishable with imprisonment of up to 10 years and a fine of up to Rs. 10 lakh. 
• Only Altruistic Surrogacy Permitted: The law permits only altruistic surrogacy, where no money exchanges hands and the surrogate mother must be genetically related to the intending couple.