IMPORTANT POINT
The eligibility for surrogacy under the Surrogacy (Regulation) Act, 2021 includes the entire 50th year, ceasing the day before the intending woman turns 51.

JUDGMENT :

Nitin Jamdar, C.J.

Surrogacy is where one woman bears and gives birth to a child with the intention of handing over such child to the intending couple after the birth. One of the conditions under the Surrogacy (Regulation) Act, 2021 is that a female in the married couple intending surrogacy is between the age of 23 to 50 years on the day of certification. The question in this Appeal is whether she is entitled to avail of surrogacy till the beginning of the 50 ^th year or at the end of 50 years. In other words, the number 50 is included in this age range, and whether the eligibility continues till she becomes 51.

2. The Appellants – Petitioners were married as per Hindu customary rites and ceremonies on 2 March 2008. Petitioner No.2, the husband of Petitioner No.1, was born on 21 November 1972. The date of birth of Petitioner No.1, in her school admission records, is 21 June 1974. Her date of birth in the Indian Passport and the Driving Licence issued by the Government of Kerala is 21 June 1978.

3. Petitioner No.1 is suffering from endometriosis. She is unable to conceive pregnancy naturally and has undergone multiple cycles of treatment involving Assisted Reproductive Technology Services. However, they were not successful. She has also undergone several other treatments for the said reason. On account of this medical condition, Petitioner No.1 proposed to conceive through surrogacy by identifying a surrogate mother.

4. The Surrogacy (Regulation) Act, 2021 (Act of 2021) and the Surrogacy (Regulation) Rules, 2022 (Rules of 2022) regulate the procedure for conceiving through surrogacy. Section 2(1)(r) defines an "intending couple" as those who have a medical need for surrogacy and seek to become parents through it. Section 2(1)(zd) defines "surrogacy" as a practice where one woman carries a child for an intending couple and hands over the child after birth. Section 2(1)(zg) defines a "surrogate mother" as a woman who agrees to carry a child through surrogacy and meets the prescribed conditions. The couple intending to follow surrogacy has to possess documents and certificates specified under Section 4 of the Act of 2021. Amongst other conditions, Section 4(iii)(c) stipulates that they must be married and between the age of 23 to 50 years in case of female and between the age of 26 to 55 years in case of male on the day of certification. They must not have a surviving child by birth, adoption, or prior surrogacy, except if the child has a life-threatening disorder with no cure, as certified by a District Medical Board.

5. The Petitioners secured a certificate of medical indication for intending couple by the District Medical Officer, Thrissur, certifying that the Petitioner No.1 is suffering from endometriosis and is eligible to avail of the surrogacy services. The certificate was issued on 25 August 2023.

The Petitioners identified a surrogate mother, as defined under Section 2(1)(zg), who agreed to bear a child through surrogacy through the implantation of the embryo in her womb for the Petitioners. The Petitioners thereafter filed Crl.M.P. No.8199 of 2023 before the Judicial First Class Magistrate Court-I, Thrissur, seeking an order regarding parentage and custody of the child. The learned Magistrate passed an order in favour of the Petitioners allowing their petition. However, the doctor attached to the surrogacy clinic found that there were some medical conditions in the proposed surrogate mother, which made her incapable of participating in the surrogacy process. The Petitioners thereafter identified another surrogate mother. This surrogate mother was also issued a certificate of medical and psychological fitness on 8 October 2024 by a Surgeon at Tripunithura certifying that this surrogate mother was medically, physically and mentally fit. The Petitioners, along with the surrogate mother, filed Crl.M.P. No.8439 of 2024 before the Judicial First Class Magistrate Court-I, Thrissur, again seeking the very same relief. By o