High Court Rules on Retrospective Application of Surrogacy Age Limits
In a significant ruling, the Allahabad High Court has determined that the age restrictions imposed by the Surrogacy (Regulation) Act, 2021 do not apply to couples who had preserved embryos before the law’s enactment. This decision was made in the case of Anshu Shukla and Another v. Union of India and Another, where the court emphasized the protection of reproductive autonomy as an aspect of personal liberty under Article 21 of the Indian Constitution.
Judicial Interpretation of Reproductive Rights
The bench, composed of Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary, highlighted that the retrospective application of the Act’s age constraints would violate fundamental rights. The Surrogacy (Regulation) Act mandates that women must be between 23 and 50 years old and men between 26 and 55 to qualify for surrogacy. However, the court ruled that this regulation should not affect those who had initiated the process before its implementation on January 25, 2022.
Case Background: A Journey Towards Parenthood
The petitioners, a couple married for over 17 years, faced challenges conceiving naturally despite various fertility treatments. After unsuccessful embryo transfers, medical advice led them to consider surrogacy. In anticipation, they froze three embryos on July 18, 2015. Unfortunately, by the time they were ready for surrogacy, the wife had exceeded the statutory age limit of 50 years.
Seeking judicial intervention, the couple filed a petition to proceed with altruistic surrogacy, despite the age restriction. They cited the Supreme Court’s decision in Vijaya Kumari S v. Union of India, which affirmed that freezing embryos signifies a couple’s intention to pursue surrogacy, requiring no further demonstration of intent.
Precedents and Legal Reasoning
In its judgment dated July 7, the High Court referred to the Supreme Court’s ruling in Arun Muthuvel v. Union of India, which provided relief to a couple with pre-Act frozen embryos. These precedents informed the High Court’s decision to exempt the petitioners from the age limitation, thus allowing them to proceed with surrogacy.
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The court instructed the couple to apply to the appropriate authority or the Chief Medical Officer in Lucknow under Section 35 of the Act within three weeks. The authority is mandated to consider the Supreme Court’s rulings and the Act’s provisions before issuing a reasoned order.
Legal Representation and Court Proceedings
The petitioners were represented by advocates Rohan Pathak and Vineet Mani Tripathi. The Union government was represented by Deputy Solicitor General of India SB Pandey, with assistance from advocate Harsha Yadav. Additional Chief Standing Counsel Pankaj Khare represented the State.
The Allahabad High Court’s decision underscores the judiciary’s role in balancing statutory regulations with constitutional rights, ensuring that legislative frameworks do not impede personal liberties.
