Allahabad High Court Reproductive Autonomy Surrogacy

The Allahabad High Court recently upheld the right to “reproductive autonomy” for a couple seeking parenthood, relaxing statutory age restrictions that had previously barred the 50-plus-year-old wife from pursuing surrogacy.

Justices Shekhar B Saraf and Abhdesh Kumar Chaudhary were hearing a plea filed by a couple who were not able to get the benefit of surrogacy despite preserving three of the embryos over a decade ago

“Upon considering the arguments advanced by learned counsel for the petitioners as well as by learned counsel for the Union of India, we are of the view that the rigid application of age restriction under the 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,” the July 7 order read.

The couple had been married for over 17 years, and despite the fertility treatment, was unable to conceive naturally and had to undergo the In-Vitro-Fertilisation (IVF) procedure. The court noted that the procedure was “not promising”, as the continuous embryo transfers were unsuccessful.

Therefore, owing to their medical condition and inability to conceive naturally, the couple was advised by the doctors to pursue surrogacy.

The high court held that the strict application of the age restriction under the surrogacy law violated the fundamental right of the couple.

The ruling noted that the husband and wife began the treatment before the implementation of the surrogacy law, and therefore the court opined that it did not apply to them. The couple, as a result, was allowed to proceed with the surrogacy process and move an application before the appropriate authority.

The court also directed that in case the application was filed within a period of three weeks from the order, the authority concerned was to grant an opportunity of hearing to the husband and wife, and thereafter, pass a reasoned order.

Advocates Rohan Pathak and Vineet Mani Tripathi, appearing for the couple, argued that the couple were aggrieved by the upper age limit for the procedure of surrogacy given under the Surrogacy (Regulation) Act, 2021, as according to the law a male must be between 26 to 55 years of age and a female must be between 23 to 50 years of age to be eligible for surrogacy as an advanced fertility treatment.

However, in the present case, the wife was aged a little more than 50 years, and since she had exceeded the age limit, she could not get the benefit of surrogacy and could not fulfill the dreams of parenthood. Thus, according to the counsels, the contention was that even though three embryos had been preserved by the petitioners on July 18, 2015, they were not able to achieve parenthood through surrogacy because of the age factor.

Senior Advocate SB Pandey and Advocate Harsha Yadav appeared for the authorities concerned, and Advocate Pankaj Khare, Additional Chief Standing Counsel, appeared for the state.