The has cleared the way for a 54-year-old woman and her 53-year-old husband to pursue parenthood through , striking down a restrictive interpretation of eligibility criteria under the . In a significant ruling for , the Division Bench comprising Justice Bharati Dangre and Justice Ashish S. Chavan held that the collective age of an "" should be considered as a composite unit. By quashing an order from the that had denied the couple an , the court established that if one spouse remains within the permissible age bracket prescribed by the statute, the age-related disqualification of the other partner does not bar the couple from accessing surrogacy services.
The couple, who had exhausted extensive medical options including repeated in vitro fertilization (IVF) cycles, had seen their application rejected by local authorities solely because the wife had surpassed the age of 50. The court's decision, issued on , mandates that the must now grant the requisite , clearing a major administrative hurdle that had previously threatened to end the couple’s hope of starting a family.
Resolving the Age-Based Eligibility Deadlock
The dispute centered on , which sets the age limits for an "" at 23–50 years for the female and 26–55 years for the male. The had applied these criteria with mathematical rigidity, concluding that because the wife was 54, the couple as a whole became ineligible. The had supported this interpretation, relying on a report from an on the implications of conception at advanced parental age, which warned of potential risks regarding caregiving capacity and the long-term well-being of the child.
However, the High Court declined to view the statute through such a narrow lens. Emphasizing the necessity of a , the bench highlighted that the couple had already made extensive, efforts to conceive naturally and through assisted reproductive technology. The court observed that the law was intended to regulate and ensure ethical practices, not to create insurmountable barriers that punish individuals based on the age of one constituent partner.
"The right to make reproductive choices, being recognised as a facet of
enshrined in
, definitely must operate with full force by keeping in mind the progressive interpretation of laws,"
the court noted in its judgment.
Aligning Surrogacy and Assisted Reproductive Technology Statutes
A central pillar of the court's reasoning was the intersection between the , and the . The bench agreed with the submissions of the , Senior Advocate , that these two statutes form an allied and cognate regulatory framework—a single code governing assisted reproduction. By looking at judicial precedents from various High Courts, such as the ’s ruling in , the bench pointed out that under the ART Act, commissioning couples are not restricted by an age ceiling applied to the unit, but rather to the individuals separately.
The judges reasoned that since surrogacy procedures inherently utilize assisted reproductive technology, it would be anomalous to apply contradictory standards of eligibility to the same category of patients. The court underscored the legislative intent behind both Acts: to prevent the exploitation of surrogate mothers and to protect the rights of children born through these processes. The bench found no in treating a couple seeking surrogacy differently from a couple seeking IVF, particularly when the husband remained within the statutory age limits to provide the necessary care and support.
Balancing Parental Welfare and Constitutional Autonomy
Throughout the proceedings, the court balanced the state’s regulatory objectives with the fundamental rights of the petitioners. The had insisted that advanced parental age could lead to caregiving disruptions, emotional insecurity for the child, and strained parental health. While the High Court did not dismiss these concerns as irrelevant, it questioned their exclusive application to surrogacy.
The judges remarked,
"We fail to understand as how this factor can be made applicable only to a child born through surrogacy to an
, and not be applied to a child born through the use of ART techniques to a commissioning couple."
Furthermore, the court noted that the
report, which suggested a strict age cap, was published in early 2026 and did not form the original basis for the statutory drafting during the 2019 Bill stage. The court emphasized that while the legislature holds the prerogative to frame laws, such laws must be interpreted to avoid creating discriminatory classifications that favor single individuals over married couples.
Following the ruling, the High Court directed the in Nashik to evaluate the couple’s medical requirements immediately. The court also denied the government's request for a stay on the judgment, allowing the petitioners to proceed with their application without further delay. By setting aside the rejection order, the Bombay High Court has reaffirmed that in matters of profound personal choice, statutory interpretations should favor the fulfillment of reproductive rights rather than their absolute denial.
gestational surrogacy - reproductive autonomy