Lucknow, Jul 14 (PTI) In a significant verdict protecting the reproductive rights of intending parents, the Allahabad High Court held on Tuesday that the upper-age limit prescribed under the Surrogacy (Regulation) Act, 2021, cannot be applied mechanically to couples who had initiated the IVF process before the law came into force and already had frozen embryos.
The Lucknow bench of the court observed that denying such couples permission to pursue surrogacy solely on the ground that they had crossed the statutory age limit would infringe on their right to reproductive autonomy and personal liberty guaranteed under Article 21 of the Constitution.
“We are of the view that a rigid application of the age restriction under the Surrogacy (Regulation) Act, 2021, infringes the fundamental right of reproductive anatomy recognised as a part of personal liberty under Article 21 of the Constitution of India,” the bench of Justices Shekhar B Saraf and A K Chaudhary said.
The court passed the order while disposing of a writ petition filed by a couple who had begun fertility treatment before the Surrogacy (Regulation) Act 2021 came into effect on January 25, 2022.
Despite undergoing several IVF cycles, the couple could not achieve a successful pregnancy, though viable embryos were cryopreserved.
Subsequently, doctors advised them to opt for surrogacy because of medical complications.
However, by the time they sought approval, the new law had come into force, making them ineligible on account of the prescribed age limit. Under the Act, the intending woman must be between 23 and 50 years of age, while the intending man must be aged between 26 and 55 years.
The bench held that the petitioners had lawfully commenced the assisted-reproductive process before the statutory regime became operational.
Applying the age restriction retrospectively would be unjust and contrary to constitutional principles, it opined.
The judges said the right to reproduction forms an integral part of an individual’s dignity, privacy and decisional autonomy under Article 21, and authorities must examine such cases in light of their unique facts, instead of adopting a rigid interpretation of the law.
Setting aside the mechanical approach adopted by authorities, the high court directed the chief medical officer of Lucknow to reconsider the couple’s application, without rejecting it solely on the basis of age.
The authority has been asked to take a fresh decision in accordance with law after considering all relevant facts and completing the prescribed procedure. PTI COR ABN RC
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