Woman over 50, failed IVF: Couple wins surrogacy relief from Allahabad High Court

4 min readLucknowUpdated: Jul 14, 2026 11:14 PM IST

Advocate Pathak told The Indian Express that the couple had not approached the CMO as their application was not eligible to be heard due to the age factor. (Representational image/File)

A couple married for over 17 years and unable to have children, despite undergoing In Vitro Fertilisation (IVF), has received a green light from the court to pursue surrogacy.

The Lucknow bench of the Allahabad High Court held that rigidly applying the Surrogacy Act’s age limit would infringe a woman’s fundamental right to reproductive autonomy.

The couple had approached the court as the Surrogacy (Regulation) Act, 2021, does not allow a woman exceeding the age of 50 to opt for the procedure. They said three embryos had been preserved on July 18, 2015, well before the Act came into force. As the woman had crossed the age limit, they could not pursue surrogacy.

In its order dated July 7, a division bench on Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary stated, “We are of the view that rigid application of the age restriction under 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.”

It also noted that the Supreme Court granted relief to a couple who had initiated fertility treatment and frozen embryos before the Surrogacy Act came into force on January 25, 2022.

The bench directed the Chief Medical Officer (CMO) of Lucknow to hear the couple’s application and issue a reasoned order.

‘Opted for IVF, but it failed’

The couple, represented by advocates Rohan Pathak, Vineet Mani Tripathi, sought permission to proceed with altruistic surrogacy despite the age limitation.

Story continues below this ad

In their petition, they stated that they were unable to conceive and opted for IVF — that, too, failed. “In consideration of their precarious medical condition to conceive naturally, they have been advised by doctors to pursue surrogacy,” their counsel submitted.

Advocate Pathak told The Indian Express that the couple had not approached the CMO as their application was not eligible to be heard due to the age factor.

The counsel argued that the petitioners qualify as an “intending couple” under Section 2(r) of the Surrogacy (Regulation) Act, 2021, but are aggrieved by the upper age limit prescribed under Section 4(iii)(v)(c)(I), which requires the woman to be between 23 and 50 years of age and the man between 26 and 55 years.

In the present case, the wife is over 50 years old.

Story continues below this ad

The counsel further informed the court that three embryos had been preserved by the petitioners on July 18, 2015, but they were not able to achieve parenthood through assisted reproductive methods because of the age factor. Medical prescriptions were placed before the court in support of the claim.

What the court said

After hearing the submissions, the bench stated in its order, “Considering 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 them.

The order stated that the petitioners are allowed to move forward with the surrogacy process.

“… 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 various judgments of the Hon’ble Supreme Court on the subject of surrogacy as well as the Surrogacy Act, 2021,” it said.

Bhupendra Pandey is the Resident Editor of the Lucknow edition of The Indian Express. With decades of experience in the heart of Uttar Pradesh’s journalistic landscape, he oversees the bureau’s coverage of India’s most politically significant state. His expertise lies in navigating the complex intersections of state governance, legislative policy, and grassroots social movements. From tracking high-stakes assembly elections to analyzing administrative shifts in the Hindi heartland, Bhupendra’s reportage provides a definitive lens on the region's evolution.

Authoritativeness He leads a team of seasoned reporters and investigators, ensuring that The Indian Express’ signature "Journalism of Courage" is reflected in every regional story. His leadership is central to the Lucknow bureau’s reputation for breaking stories that hold the powerful to account, making him a trusted figure for policy analysts, political scholars, and the general public seeking to understand the nuances of UP’s complex landscape.

Trustworthiness & Accountability Under his stewardship, the Lucknow edition adheres to the strictest standards of factual verification and non-partisan reporting. He serves as a bridge between the local populace and the national discourse, ensuring that regional issues are elevated with accuracy and context. By prioritizing primary-source reporting and on-the-ground verification, he upholds the trust that readers have placed in the Express brand for nearly a century. ... Read More

Tags:

surrogacy