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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.DIAS
Rajitha P.V. W/O Santhosh M. – Appellant
Versus
Union of India Rep. By Its Secretary, New Delhi – Respondent
JUDGMENT :
C.S. DIAS, J.
1. The 1st petitioner is the wife of the 2nd petitioner. The 1st petitioner was born on 21.06.1978 and is 46 years of age, while the 2nd petitioner was born on 21.11.1972 and is 52 years old. The petitioners are issueless. The petitioners underwent several cycles of treatment utilising the Assisted Reproductive Technology, but did not yield the expected results. Hence, the petitioners are eligible to avail surrogacy services. The petitioners have identified a surrogate mother who has consented to assist them in conceiving a child. The jurisdictional Magistrate has passed Ext.P8 order declaring that the parentage and custody of the child born through the surrogate mother would vest with the petitioners. Accordingly, the petitioners approached the 3rd respondent Board for an eligibility certificate as provided under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021 (“Act” for brevity). However, the 3rd respondent has orally declined to issue the eligibility certificate because the 1st petitioner has attained 50 years. Section 4(iii)(c)(I) of the Act lays down the age limit for both males and females seeking surrogacy services. The provision specifically
The court ruled that the age limit for surrogacy eligibility is strict, and a female becomes ineligible upon reaching 50 years, rejecting interpretations extending eligibility beyond this age.
Eligibility for surrogacy services is strictly determined by age limits as stipulated in legislation, ceasing upon reaching the specified age.
The eligibility for surrogacy under the Surrogacy (Regulation) Act, 2021 includes the entire 50th year, ceasing the day before the intending woman turns 51.
Age restrictions in surrogacy laws cannot be applied retrospectively to couples who initiated processes prior to enactment, preserving their reproductive rights under constitutional protections.
Age restrictions under Surrogacy Act, 2021 not applicable retrospectively to pre-Act cryopreserved embryos.
Section 4 deals with regulation of surrogacy and surrogacy procedures.
Upper age limits in Surrogacy Act are constitutionally valid, reasonable restrictions protecting child welfare and health.
Legislative imposition of age eligibility for surrogacy does not infringe fundamental rights, as it serves legitimate interests regarding health and welfare of children born from surrogacy.
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