Court rules age restrictions under Surrogacy Act cannot retroactively apply to couples who began the process before the law's enactment.
In a landmark judgment, the Allahabad High Court has ruled in favor of an intending couple, Anshu Shukla and Another, who had initiated the surrogacy process prior to the enforcement of the Surrogacy (Regulation) Act, 2021. The Division Bench comprising Justices Shekhar B. Saraf and Abdhesh Kumar Chaudhary declared that the rigid application of age restrictions under the Act infringes the fundamental right to reproductive autonomy, a component of personal liberty under Article 21 of the Constitution of India.
The petitioners, legally wedded for over 17 years, were unable to conceive naturally despite undergoing fertility treatments, including In Vitro Fertilization (IVF). Before the Surrogacy Act came into force on January 25, 2022, the couple had frozen embryos with the intention of pursuing surrogacy.
The court highlighted that the age restrictions in Section 4(iii)(v)(c)(I) of the Surrogacy Act, which caps the age for surrogacy eligibility at 55 for males and 50 for females, cannot be applied retrospectively. The judgment emphasizes that the initiation of the surrogacy process, marked by the freezing of embryos, signifies the couple's bona fide intent to undertake surrogacy, thus protecting them from the retrospective application of the Act.
In its decision, the court referenced precedents from the Supreme Court and other High Courts, including the significant ruling in Vijaya Kumari S v. Union of India, which upheld that the creation and freezing of embryos represent a crystallization of intent that should not be thwarted by subsequent legislative changes.
The court directed the petitioners to apply for necessary permissions with the Chief Medical Officer in Lucknow, ensuring that their application is considered in light of the relevant judicial pronouncements and the Surrogacy Act, 2021. The judgment is a pivotal affirmation of reproductive rights, recognizing the importance of personal liberty and the right to parenthood under the Indian Constitution.
Bottom line:-
Surrogacy (Regulation) Act, 2021 - Rigid application of age restrictions under the Act infringes the fundamental right of reproductive autonomy, recognized as a part of personal liberty under Article 21 of the Constitution of India. Age restrictions under the Act cannot retrospectively apply to intending couples who had initiated the surrogacy process and frozen embryos before the enforcement of the Act.
Statutory provision(s): Article 21 of the Constitution of India, Surrogacy (Regulation) Act, 2021 - Sections 2(r), 4(iii)(v)(c)(I), 35.
Anshu Shukla v. Union of India, (Allahabad)(DB)(Lucknow) : Law Finder Doc id # 2940126
