The Bombay High Court has permitted a 54-year-old woman to pursue gestational surrogacy, holding that crossing the prescribed upper age limit of 50 years would not automatically disqualify an intending couple when the husband remains within the statutory age bracket.
Background of the Case
The Nashik-based couple, comprising a 54-year-old woman and her 53-year-old husband, had made repeated attempts to conceive naturally and undergone multiple unsuccessful in-vitro fertilisation (IVF) cycles and embryo transfers. Following medical advice, they decided to pursue gestational surrogacy using donor eggs and the husband's sperm.
However, their application for an eligibility certificate was rejected by the Nashik Municipal Corporation's Appropriate Authority on July 14, 2026, solely because the woman had crossed the statutory age limit of 50 years.
Aggrieved by the rejection, the couple approached the Bombay High Court, challenging the decision and seeking protection of their reproductive rights under Articles 14 and 21 of the Constitution of India.
Statutory Framework and Arguments
Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 prescribes an age range of 23 to 50 years for the female partner and 26 to 55 years for the male partner in an intending couple on the date of certification.
The Union Government argued that both partners were required to satisfy their respective age requirements. It also raised concerns regarding advanced-age parenting, caregiving capacity and the welfare of the child.
Senior Advocate Sharan Jagtiani, appointed as amicus curiae, suggested that the Surrogacy Act should be interpreted harmoniously with the Assisted Reproductive Technology (Regulation) Act, 2021. He argued that an intending couple should be considered as a composite unit and that one partner's crossing the age limit should not automatically disadvantage the other partner who remains eligible.
Court's Observations
Accepting the amicus curiae's approach, the Bench adopted a purposive interpretation of Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.
The Court observed that the Surrogacy Act and the Assisted Reproductive Technology (Regulation) Act form part of a connected legislative framework governing reproductive procedures and should be interpreted harmoniously.
It also distinguished between a woman carrying her own pregnancy at an advanced age and a gestational surrogacy arrangement in which another woman carries the pregnancy.
The Bench recognised reproductive choice and autonomy as facets of the right to life and personal liberty guaranteed under Article 21 of the Constitution.
Importantly, the Court clarified that it was not declaring the statutory age restrictions unconstitutional or invalidating the prescribed limits.
Final Decision
The Bombay High Court quashed the Nashik Municipal Corporation's order dated July 14, 2026, rejecting the couple's eligibility application.
The Court directed the Appropriate Authority to issue an eligibility certificate to the couple and further directed the Nashik District Medical Board to issue a certificate of medical indication, subject to the couple satisfying the applicable medical requirements under the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022.
The Union Government's request for a stay of the judgment was also rejected.
Legal Significance
The decision highlights the importance of purposive statutory interpretation, reproductive autonomy and the harmonious application of laws regulating assisted reproduction.
It clarifies that, in the particular circumstances of this case, crossing the prescribed age limit by one partner would not automatically prevent the other eligible partner from accessing surrogacy.
The judgment does not remove the statutory age restrictions generally but provides an important interpretation concerning the eligibility of an intending couple.
Key Legal Takeaway
The ruling reinforces the significance of reproductive autonomy under Article 21 while demonstrating how courts may adopt a purposive interpretation of legislation to address individual circumstances. It does not abolish or invalidate the statutory age limits prescribed under the Surrogacy (Regulation) Act, 2021.