Kiran Stefan & Anr. vs Union Of India & Ors.

$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Date of Decision: November 02 , 2026
# CNR No. DLHC010526802026
+ W.P.(C) 16168/2026 & CM APPL. 75725/2026
KIRAN STEFAN & ANR. .....Petitioners
Through: Mr. Vikas Verma &
Mr. Swatny Pillai, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Jivesh Kr. Tiwari, CGSC &
Mr. Mritunjaya Mahendra, GP
with Ms. Nandini Aggarwal,
Adv. for UOI
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)
1. By way of the present petition, the petitioner seeks the
following reliefs:
I. “Issue a writ of mandamus or any other appropriate writ,
order or direction, to grant exemption from the age
restriction to the Petitioners under the Surrogacy
(Regulation) Act, 2021 and permit the Petitioners to avail
gestational surrogacy;
AND
II. Direct the Respondents to issue the eligibility certificate
and all consequential approvals required under the
Surrogacy (Regulation) Act, 2021 and the Surrogacy
(Regulation) Rules, 2022;
III. In the alternative, read down / relax the age restriction to
the extent necessary to permit the Petitioners to proceed
with surrogacy, considering their childless status, failed
IVF treatment(s), prior cryopreserved embryos and medical
necessity;
OR
IV. Pass such other order or orders as this Hon'ble Court may
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:04.11.2026
20:53:19
W.P.(C) 16168/2026 Page 1 of 5

deem fit and proper in the facts and circumstances of the
case.”
2. Briefly put, it is the case of the petitioners that they have been
unable to have a child despite several unsuccessful attempts at natural
conception, IVF and other assisted reproductive procedures. The facts,
as discernible from the pleadings, reveal that on 06.02.2025, the
petitioners approached the treating clinic for their first consultation
and at that time, Petitioner No.1 was approximately 49 years 7 months
old. Thereafter, on 10.02.2025, gestational surrogacy with a donor
oocyte was advised to the petitioners. As discernible from the
pleadings, Petitioner No. 1 was only undergoing infertility treatment
in July, 2025 when she crossed the upper age limit of 50 years under
Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 [hereafter
‘ the Act ’]. The present petition thereafter was filed on 02.03.2026.
3. It is the case of the petitioners that Petitioner No. 1, having
crossed the upper age limit prescribed under the Act has been
rendered ineligible for the surrogacy procedure. It has been argued
that the disqualification has operated to the detriment of the petitioners
despite the fact that the petitioners have initiated the requisite process
for surrogacy before Petitioner No. 1 crossed the upper age limit
prescribed under the Act. Reliance has been placed on the case of
Tapas Kumar Mallick & Anr. v. Union of India & Anr. :
2025:DHC:9583 to argue that this Court, upon consideration of the
prior commencement of surrogacy procedure, had exempted the
petitioners therein from seeking eligibility certification and had
allowed the petitioners therein to move forward with the surrogacy
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:04.11.2026
20:53:19
W.P.(C) 16168/2026 Page 2 of 5

procedure. It has consequently been argued that the petitioners be also
exempted from seeking eligibility certification.
4. Having taken note of the contentions advanced by the
petitioners, this Court is of the opinion that the relief sought by the
petitioners cannot be countenanced.
5. As is apparent from a perusal of the record, Petitioner No. 1,
when she went for her consultation for the very first time on
06.02.2025 was already 49 years and 7 months old. On that occasion,
while altruistic surrogacy was advised, Petitioner No. 1 was advised to
obtain all relevant permissions for treatment. The record does not
indicate that Petitioner No. 1 proceeded to obtain any requisite
permission, and while Petitioner No. 1 was undergoing infertility
treatment only, she crossed the upper age prescribed under the Act.
Thus, as discernible from the pleadings, before the surrogacy
procedure could be commenced, Petitioner No. 1 had crossed the
statutory limit prescribed under the Act.
6. Even reliance placed by the petitioners on Tapas Kumar
Mallick & Anr. v. Union of India & Anr. (supra) does not aid the
case of the petitioners. In the said case, the petitioners therein were
allowed to move forward with the surrogacy process specifically
noting that the petitioners therein had initiated the process for
surrogacy as far back as in January, 2021, that is prior to the
commencement of the Act, which came into force on 25.01.2022.
7. In contradistinction to the facts of Tapas Kumar Mallick &
Anr. v. Union of India & Anr. (supra), in the present case, firstly, the
petitioners underwent their very first consultation on 06.02.2025, that
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:04.11.2026
20:53:19
W.P.(C) 16168/2026 Page 3 of 5

is, three years after the Act and statutory limit came into force.
Secondly, Petitioner No. 1 was only in the process of infertility
treatment when she crossed the statutory age limit. It cannot thus be
said that since the petitioners ‘commenced’ the process of surrogacy
prior to Petitioner No. 1 crossing the statutory limit, Petitioner No. 1
ought to be granted the exemption.
8. There is also another factor which disentitles the petitioners to
grant of discretionary relief under Article 226 of the Constitution of
India. As noted above, the petitioners, at their very first consultation
on 06.02.2025 were made aware that Petitioner No. 1 was only 5
months short of approaching the upper age limit. Despite the same, the
petitioners only approached this Court on 02.03.2026. The petition
does not disclose any satisfactory explanation for not approaching the
Court with promptitude. The petitioners thus cannot seek equitable
and discretionary relief under Article 226 of the Constitution of India
after having failed to act with due diligence despite prior knowledge
of the legal impediment.
9. While this Court is conscious of the deeply personal nature of
the petitioners’ aspirations and the emotional distress which
unsuccessful treatment may entail. Notwithstanding, the Court is
required to decide the matter in accordance with the governing
statutory framework and sympathy, howsoever genuine, cannot be a
substitute for statutory eligibility. The present case is not one where a
statutory restriction has been retrospectively imposed.
10. Pertinently, the petitioners have not challenged the vires of the
Act. This Court, while interpreting a provision, is only required to
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:04.11.2026
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W.P.(C) 16168/2026 Page 4 of 5

interpret the law and cannot legislate it [Ref. State of Jharkhand and
Another v. Govind Singh : (2005) 10 SCC 437 ]. Courts therefore, in
exercise of jurisdiction under Article 226 of the Constitution of India
cannot amend, modify or alter the law. Consequently, in the absence
of any challenge to the provisions of the Act, no relief can be granted
to the petitioners.
11. In view of the above, no ground to exercise jurisdiction under
Article 226 of the Constitution of India is made out.
12. The present petition is accordingly dismissed. Pending
application also stands disposed of.
AMIT MAHAJAN, J
NOVEMBER 2, 2026
“SS”
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:04.11.2026
20:53:19
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