Anshu Shukla And Another vs Union Of India, Ministry Of Health And Family Welfare Deptt. Thru. Secy. New Delhi And Another

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 6292 of 2026
Anshu Shukla And Another
.....Petitioner(s)
Versus
Union Of India, Ministry Of Health And Family
Welfare Deptt. Thru. Secy. New Delhi And
Another .....Respondent(s)
Counsel for Petitioner(s) : Rohan Pathak, Vineet Mani Tripathi
Counsel for Respondent(s) : A.S.G.I., C.S.C.

Court No. - 3
HON'BLE SHEKHAR B. SARAF, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
1. Learned counsel appearing on behalf of the petitioners wishes to
implead the Chief Medical Officer, Lucknow as respondent No.3 in the
array of the parties
2. He is permitted to carry out the necessary amendment during the course
of day.
3. Heard learned counsel appearing on behalf of the petitioner, Shri S.B.
Pandey, learned Senior Advocate & DSGI assisted by Ms. Harsha Yadav,
learned counsel appearing on behalf of the respondent and Shri Pankaj
Khare, learned Additional Chief Standing Counsel for the State-
respondent.
4. This is a writ petition under Article 226 of the Constitution of India
wherein the writ petitioner has prayed for the following substantial
relief(s):
"(a) Allow the present writ petition and permit the petitioner to proceed
with altruistic surrogacy despite the age limitation-imposed under Section
4(iii)(v)(c)(I) of the Surrogacy Act, 2021."
5. It has been submitted that the petitioners are legally wedded for the last
more than 17 years and unfortunately dehors the fertility treatment, were

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2
unable to conceive naturally and as such had to undergo In Vitro
Fertilization (IVF) procedure. It has been further submitted that even the
said In Vitro Fertilization procedure was not promising in the sense that
successive embryo transfer failed as they were unsuccessive attempts at
conception. Thus, in consideration of their precarious medical condition
to conceive naturally have been advised by the Medical Practitioners to
pursue surrogacy.
6. Learned counsel for the petitioners has highlighted the fact that the
petitioners are 'intending couple' within the meaning of Section 2 (r) of
the Surrogacy (Regulation) Act, 2021 and are basically aggrieved by the
upper age permitted under Section 4 (iii) (v) (c) (1) of the said Act.
According to him, as per Section 4 (iii) (v) (c) (1) of the said Act, 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 petitioner No.1 (wife) is aged
little more than 50 years and since she exceeded the age limit prescribed
under the said provisions of the Surrogacy Act, which came into force on
25.01.2022, she cannot avail the assistance of the surrogacy and could not
fulfill the dreams of parenthood.
7. Thus, the crux of the matter according to the learned counsel for the
petitioners is that although three embryo has been preserved by the
petitioners on 18.07.2015, however, they were not able to achieve
parenthood through assisted reproductive method because of the age
factor.
8. Learned counsel in order to buttress his submission has relied upon the
medical prescription as well as on the judgements of the Delhi High Court
in
Tapas Kumar Mallick and another Vs. Union of India and another
reported in 2025 SCC OnLine Del 10922 and the Punjab & Haryana
High Court in CWP-6726-2026
Shobhini Mala Vs. Union of India,
(O&M), decided on 21 April 2026. He has specifically contended that the
Hon'ble Supreme Court in the case of
Vijaya Kumari S & another Vs.
Union of India reported in (2025) SCC OnLine SC 2195 has specifically
held relevant to the context that:-
"14.3. Therefore, we deem it appropriate to observe that the "commencement" of the

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surrogacy process for the limited purpose of determining when the age-limits under
the Act must be applied prospectively and not retrospectively takes place after the
intending couple has completed the extraction and fertilisation of gametes and has
frozen the embryo with an intention to and for the purposes of, transfer to the womb of
the surrogate mother. There is no additional step to be undertaken by the couple
themselves. All subsequent steps would involve only the surrogate mother. There is
nothing else for the couple to do by themselves, that would strengthen the
manifestation of their intention to pursue surrogacy. Therefore, the freezing of
embryos for the purpose of surrogacy is a stage at which one can say that the
intending couple has taken multiple bona fide steps and had manifested their intention
to pursue surrogacy and all that remained was involvement of the surrogate mother
herself in Stage B of the diagram, which could not be gone through due to various
circumstances including the intervention of COVID-19 Pandemic in these cases.
15.9. We therefore hold that creation of embryos and freezing of the same is
crystallisation of the said process as it clearly demonstrates the intention of the
couples i.e. intending couples, in the instant cases. The earlier stages, namely (i) visit
to surrogacy clinic; (ii) counselling of the patient; (iii) obtaining of the various
permissions/certificates from appropriate authorities under Section 4 of the Act; and
(iv) extraction of gametes of Stage A, are no doubt part of surrogacy procedure but
are stages prior to the crystallisation of the intention of the couple to undertake a
surrogacy procedure an interpretation we are giving in the context of age barriers.
Therefore, when there was no age restriction at the stage of creation of embryos and
freezing them i.e. prior to the enforcement of the Act, when the intending couples are
at the threshold of Stage B, the age restriction under the Act cannot be permitted to
operate retrospectively on such intending couples as in the present cases so as to
frustrate not just the surrogacy procedure but also their right to have a surrogate
child or become parents, the latter being a constitutional right under Article 21 of the
Constitution.
15.10. Therefore, the rule against retrospective operation of statutes applies in the
instant case in order to preserve the rights of intending couples such as the
petitioners/applicant in the present case. If we do not apply the aforesaid principle of
interpretation of statutes we would failing in our duty to uphold the constitutional
right of such intending couples under Article 21 of the Constitution. Therefore, we
hold that the age bar does not apply to intending couples such as the ones we are
considering in the present cases."

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9. 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 Surrogacy
(Regulation) Act, 2021 infringes the fundamental right of the reproductive
autonomy recognized as a part of personal liberty under Article 21 of the
Constitution of India. Hon'ble Supreme Court in similar circumstances,
wherein fertility treatment was started prior to the enforcement of the
Surrogacy Act has granted relief to an intending couple who has frozen
embryo prior to January 25, 2022 in the case of
Arun Muthuvel Vs.
Union of India reported in 2024 SCC OnLine SC 140.
10. In light of the judgement of and considering
Vijaya Kumari (supra)
that the petitioners initiated the surrogacy procedure prior to the
enforcement of the Act, this Court is of the considered opinion that
Section 4 (iii) (v) (c) (I) of the said Act is not applicable to the petitioners
herein.
11. Accordingly, the petitioners are allowed to move forward with the
surrogacy process and in that respect, they are permitted to file a proper
application before the appropriate authority/Chief Medical Officer,
Lucknow in terms of Section 35 of the Surrogacy Act, 2021. If such an
application is filed within a period of three weeks from date, the authority
concerned is directed to grant an opportunity of hearing to the petitioner,
and thereafter, pass a reasoned order keeping in view the various
judgements of the Hon'ble Supreme Court on the subject of the surrogacy
as well as the Surrogacy Act, 2021.
12. With the above directions, the writ petition is .
disposed of
(Abdhesh Kumar Chaudhary,J.) (Shekhar B. Saraf,J.)
July 7, 2026
Ashutosh
Digitally signed by :-
ASHUTOSH PANDEY
High Court of Judicature at Allahabad,
Lucknow Bench