LUCKNOW, July 15 -- The Lucknow bench of the Allahabad high court has held that the age restriction under the Surrogacy (Regulation) Act, 2021 cannot be applied to couples who had created and frozen embryos before the law came into force. A division bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary, in its July 7 judgment on a petition filed by a Lucknow couple, ruled that retrospective application of the age limit would interfere with their reproductive autonomy, which forms part of the right to personal liberty under Article 21 of the Constitution. "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," the court said. Section 4(iii)(c)(I) of the Act prescribes that the woman must be between 23 and 50 years of age and the man between 26 and 55 years to be eligible for surrogacy. However, the court held that this restriction would not apply where the couple had initiated the surrogacy process before the Act came into force on January 25, 2022. The court was hearing a petition by a Lucknow couple married for over 17 years who had failed to conceive despite fertility treatment and multiple unsuccessful embryo transfers. They were subsequently advised to opt for surrogacy. The couple had preserved three embryos on July 18, 2015. By the time they sought to proceed with surrogacy, however, the wife had crossed the statutory upper age limit of 50 years, prompting them to approach the high court for permission to pursue altruistic surrogacy. The petitioners relied on the Supreme Court's ruling in Vijaya Kumari S v. Union of India, which held that the creation and freezing of embryos crystallises an intending couple's decision to pursue surrogacy and that no further step is required to establish such intention. The high court also relied on the Supreme Court's decision in Arun Muthuvel v. Union of India, in which similar relief was granted to a couple who had frozen embryos before the Surrogacy Act came into force. Holding that the statutory age restriction was inapplicable to the petitioners, the court permitted them to proceed with the surrogacy process and apply to the appropriate authority or the CMO, Lucknow, under Section 35 of the Act within three weeks. It directed the authority to consider their application in the light of the Supreme Court rulings and pass a reasoned order. MANOJ KUMAR SINGH...