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2025 Supreme(Online)(Gau) 8705

HIGH COURT OF GAUHATI
THE CHIEF JUSTICE, MR. JUSTICE ARUN DEV CHOUDHURY
SEEMA CHAKRABORTY AND ANR – Appellant
Versus
UNION OF INDIA AND 5 ORS – Respondent
WP(C) / 7348 / 2023

Advocates:
For the Appellants/Petitioners: MR H R A CHOUDHURY, U U KHAN, MR A AHMED, MR I U CHOWDHURY, MR A AHMED
For the Respondents: DY.S.G.I., MRS. A GAYAN, SC, HEALTH, GA, ASSAM

The court held that age eligibility and donor gamete restrictions under the Surrogacy (Regulation) Act, 2021 and Rules are reasonable, constitutional restrictions on reproductive autonomy, and do not violate Articles 14 and 21.

Headnote:(A) Surrogacy (Regulation) Act, 2021 - Section 4(iii)(b)(I) - Age eligibility of surrogate mother - Constitution of India - Articles 14 and 21 - Reproductive autonomy - Reasonable restrictions - Surrogacy (Regulation) Rules, 2022 - Rule 7, Form 2 - Amendment dated 14-3-2023 - Restriction on use of donor gametes by married couples - Challenge to statutory provisions - Classification - Intelligible differentia - Rational nexus - Legitimate expectation cannot override statute - Proportionality test - Hardship not ground to strike down. (Paras 2, 12-13, 14-15, 20-21, 22-23, 29-30)

(B) Constitutional law - Fundamental rights - Article 14 - Age-based classification is valid if founded on intelligible differentia and rational nexus with object sought to be achieved - Age limits for surrogacy linked to paternal capacity, health, longevity and child welfare - Not arbitrary or irrational. (Paras 20-21)

(C) Legitimate expectation - Doctrine cannot be invoked against express statutory mandate - No vested right to re-initiate surrogacy after failure of earlier attempt - Eligibility conditions must be satisfied on date of claim. (Paras 22-23)

(D) Donor gamete restriction - Policy choice to ensure genetic linkage between child and intending parents - Classification based on differing social and biological circumstances - Reasonable and not violative of Article 14 - Rule 14(a) does not confer unqualified right to use donor gametes. (Paras 24-26)

Facts of the case:
The petitioners, a married couple suffering from infertility, attempted surrogacy but failed. They filed an earlier writ petition (WP

(C) 7025/2022) which was disposed of allowing them to try in another State. That attempt also failed. Meanwhile, the Surrogacy (Regulation) Act, 2021 came into force and an amendment dated 14-3-2023 to Form 2 under Rule 7 prohibited use of donor gametes by married couples. The petitioners crossed the prescribed age limit. When they sought fresh permission, authorities refused on grounds of statutory ineligibility and non-compliance with amended Form-2. The petitioners challenged the age eligibility provision and the amendment as violative of Articles 14 and 21.

Findings of Court:
The court held that reproductive autonomy is part of personal liberty under Article 21 but is subject to reasonable restrictions. The age eligibility provision is based on intelligible differentia and rational nexus with the object of protecting child welfare and preventing exploitation. The petitioners having crossed the age limit before seeking fresh permission cannot claim any vested right. The restriction on donor gametes reflects a policy choice to ensure genetic linkage and is reasonable. The amendment does not violate Article 14. The plea of legitimate expectation fails as it cannot defeat clear statutory mandate. The restrictions satisfy proportionality test. The court dismissed the petition.

Issues: 1. Whether the age eligibility prescribed under Section 4(iii)(b)(I) of the Surrogacy (Regulation) Act, 2021 violates Articles 14 and 21 of the Constitution? 2. Whether the amendment dated 14-3-2023 to Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, restricting donor gametes for married couples, is unconstitutional? 3. Whether the petitioners have a vested right or legitimate expectation to pursue surrogacy despite failing earlier attempts and subsequent statutory changes?

Ratio Decidendi: The court reasoned that the impugned provisions are reasonable restrictions on reproductive autonomy. Age classification is valid because it serves legitimate state interests. Eligibility must exist at the time of claiming benefit; prior attempts do not confer immunity from subsequent laws. The amendment to Form 2 is a policy choice within legislative competence and does not violate Article 14. Individual hardship cannot override statutory policy. The restrictions are proportionate and not arbitrary.

Result: Writ petition dismissed. No order as to costs. (Paras 32-33)

BEFORE

HON’BLE THE CHIEF JUSTICE ASHUTOSH KUMAR

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioners : Mr. A. Ahmed, learned Adv.

For the Respondents : Ms. A. Gayan, learned CGC.

Ms. R. B. Bora, learned GA.

Date on which judgment is reserved : 12.12.2025

Date of pronouncement of judgment : 18.12.2025

Whether the pronouncement is of the operative part of the judgment : No

Whether the full judgment has been pronounced : Yes

JUDGMENT & ORDER (CAV)

Date:18-12-2025

(Arun Dev Choudhury, J)

1. Heard Mr. A. Ahmed, learned counsel for the petitioners and Ms. A. Gayan, learned Central Government Counsel, as well as Ms. R. B. Bora, learned Government Advocate, Assam, for the respondents.

2. The challenge is directed both against the applicability of the age eligibility prescribed under Section 4 (iii) of the SURROGACY (REGULATION) ACT, 2021 (hereinafter referred to as the Act, 2021) and the amendment dated 14-3-2023 to Form No. 2 under Rule 7 of the of the Surrogacy (Regulation) Rules, 2022, which regulates the use of donor gametes.

3. The facts which are necessary for proper adjudication of the present case in nutshell are that the petitioners, a married couple faced with infertility issues went for extensive medical efforts including IVF technology, which failed to bestow them blessings of parenthood for which, they finally decided to go for surrogacy; the semen of the petitioner No.2 was collected for initiating the process of surrogacy. However, during the said process, the Act 2021 was enacted on 25.12.2021, which mandated specific permission and certification to opt for Surrogacy.

4. Finding no alternative, the petitioners approached this Court by filing

WP(C) No. 7025/2022, contending that the requisite statutory mechanism for enabling surrogacy had not been constituted till then. Also argued that the Central/State Government has not formed any Board to function as “Appropriate Authority” as required under Section 35 of the said Act, 2021, which issues certificates as required under Section 4 (iii)(a) of the said Act before initiating any procedure for surrogacy.

5. The aforenoted writ petition was disposed of by the learned Single Judge on 23.01.2023, permitting them to try the same in any other State. Accordingly, though the petitioners again initiated the surrogacy procedure on 01.02.2023, it also failed. Thereafter, the Central Government issued a Notification dated 14.03.2023, which prevents the use of donor sperm to avail a surrogacy procedure by a married woman, excluding single women, with an exception in respect of widows or divorcees.

6. Accordingly, the petitioners have filed the present writ petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, assailing the refusal of the competent authorities to permit them to pursue surrogacy under the said Act, 2021, and the Surrogacy (Regulation) Rules, 2022.

7. As recorded hereinabove, the factual background is largely undisputed. The petitioners suffer from medically certified conditions, rendering natural conception impossible. They had earlier attempted surrogacy pursuant to an order of this Court whereby the Court permitted them to do so in another State, in

the absence of the establishment of the authority under the Act, 2021 in the State of Assam.

8. The said attempt, however, failed for medical reasons. On the date when the amendment dated 14.03.2023 came into force, no surrogacy process of the petitioners was continuing, the earlier attempt having already failed. In the meantime, the petitioners crossed the upper age limit prescribed under Section 4 (iii)(b)(I) of the Act, 2021.

9. When the petitioners, thereafter, sought fresh permission to initiate surrogacy, the authorities declined the request on the grounds of statutory ineligibility and non-compliance with the amended Form-2.

10. The petitioners contended that the impugned action violates their fundamental rights under Articles 14 and 21 of the Constitution of India.

11. It is ur

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2025 Supreme(Online)(Gau) 8705

HIGH COURT OF GAUHATITHE CHIEF JUSTICE, MR. JUSTICE ARUN DEV CHOUDHURYSEEMA CHAKRABORTY AND ANR – AppellantVersusUNION OF INDIA AND 5 ORS – RespondentWP(C) / 7348 / 2023

The court held that age eligibility and donor gamete restrictions under the Surrogacy (Regulation) Act, 2021 and Rules are reasonable, constitutional restrictions on reproductive autonomy, and do not violate Articles 14 and 21.

Cases Referred (2)

HIGH COURT OF GAUHATI
THE CHIEF JUSTICE, MR. JUSTICE ARUN DEV CHOUDHURY
SEEMA CHAKRABORTY AND ANR – Appellant
Versus
UNION OF INDIA AND 5 ORS – Respondent
WP(C) / 7348 / 2023