Sangita Pundlik Babar And Anr vs Union Of India Throu. The Sec. Ministry Of Health And Family Welfare And Ors
- Court
- Bombay High Court
CNR No : HCBM010387822026
2026:BHC-AS:45242-DB
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Salgaonkar/Tilak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MANDIRA MILIND
SALGAONKAR
Digitally signed by MANDIRA
MILIND SALGAONKAR
Date: 2026.11.05 17:02:21 +0530
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11143 OF 2026
X-1 & Anr. .. Petitioners
Versus
Union of India through the Secretary,
Ministry of Health and Family
Welfare, Government of India & Ors.
.. Respondents
…
Mr.Utkarsh R. Pondkule with Mr.Jagdish Deore and
Mr.Akshay Desai for the Petitioners.
Mr.Anil C. Singh, Additional Solicitor General of India with
Ms.Savita Ganoo, Mr.Krishnakant Deshmukh and Mr.Aadarsh
Vyas for the Respondent No.1/UOI.
Mr.Sharan Jagtiani, Senior Advocate and Amicus Curiae with
Ms.Surabhi Agrawal, Mr.Siddharth Joshi and Ms.Avanti
Divan.
Mr.Ketan V. Joshi, ‘B’ Panel Counsel with Mr.A.A.Alaspurkar,
A.G.P. for the State/Respondent Nos.3, 4 and 6.
Ms.Chaitrali Deshmukh for the Respondent No.5.
CORAM: BHARATI DANGRE &
ASHISH S. CHAVAN, JJ.
th
RESERVED ON : 26 OCTOBER, 2026
th
PRONOUNCED ON : 04 NOVEMBER, 2026
...
JUDGMENT (PER BHARATI DANGRE, J.)
“ Of all the Rights of Women, the greatest is to be a Mother.”
Lin.Yutang
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It is this right to be a ‘Mother’ is what is claimed before
us through present Petition filed by X-1, a female aged 54 years
and X-2, a male aged 53 years, being the legally wedded
spouses, both together constituting “intending couple” within
the scope of the Surrogacy (Regulation) Act, 2021 (hereinafter
referred to as “Surrogacy Act” ).
2. The Petitioners have instituted the Writ Petition, being
aggrieved by the rejection of their application for issuance of
an Eligibility Certificate under Section 4(iii)(c) of the
Surrogacy Act, solely on the ground that X-1 has crossed the
upper age limit prescribed under Section 4(iii)(c)(I) of the Act.
The Petitioners seek judicial review of the said order and
consequential relief for enforcement of their right under
Articles 14 and 21 of the Constitution of India.
Pleading that the Petitioners have made serious and
continuous efforts to conceive naturally, but the prolonged
attempts remaining unsuccessful, they consulted the qualified
infertility specialists and underwent detailed clinical
evaluation and infertility investigations. Acting upon the
expert medical advice, they underwent Assisted Reproductive
Technology (‘ART’) procedures, including multiple cycles of In
Vitro Fertilization (‘IVF’) at recognised fertility centres. It is
the pleaded case of the Petitioners that despite undergoing
ART procedures under expert supervision and faithfully
complying with every prescribed medical protocol, the
treatment did not result in a successful clinical pregnancy. It
is on 27/06/2026, on consulting an IVF Specialist in Nashik, a
medical opinion is issued as below :-
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“7. That in view of the prolonged infertility history, repeated
unsuccessful IVT attempts, passage of substantial time since
commencement of treatment and the present age of the intending
mother, the possibility of achieving pregnancy through
conventional methods has become increasingly challenging from a
medical perspective.
8. That the couple continues to have a genuine desire to have a
child and complete their family. Their desire of parenthood has
remained consistent over the years and is supported by their long
history of undergoing infertility treatment.
9. .. .. ..
10. .. .. ..
11. That in my professional opinion, the present case deserves
compassionate and equitable consideration in light of the peculiar
facts and circumstances, namely :-
a. Long-standing history of infertility;
b. Multiple IVF and embryo transfer attempts undertaken over
several years;
c. Repeated unsuccessful treatment outcomes despite sincere
efforts;
d. Advanced maternal age and reduced reproductive prospects;
e. Continued bona fide desire of the couple to have a child and
experience parenthood.”
3. In light of the aforesaid opinion recommending
gestational surrogacy, the Petitioners submitted an application
before the Appropriate Authority of Nashik Municipal
Corporation under the Surrogacy (Regulation ) Act, 2021, i.e.
Respondent No.5, seeking issuance of Eligibility Certificate in
accordance with Section 4(iii)(c), and they simultaneously
initiated the process of obtaining the Medical Indication
Certificate from District Medical Board.
Respondent No.5, on 14/07/2026, rejected the
application filed by the Petitioners by stating thus :-
“Age of X-1 is 54 years and under the Surrogacy Act, 2021, the age
of the woman, shall not exceed 50 years and, therefore, the
Eligibility and Essentiality Certificate cannot be issued to the
Petitioners.”
4. It is this rejection, which has constrained the Petitioners
to file the present Writ Petition calling in question the order
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dated 14/07/2026 passed by Respondent No.5 and seeking the
following reliefs :-
“B. Issue an appropriate writ, order or direction declaring
that Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 is
required to be interpreted purposively and harmoniously with the
object of the Act. Rule 14 of the Surrogacy (Regulation) Rules,
2022 and the constitutional guarantees under Articles 14 and 21 of
the Constitution of India, so as to permit consideration of
exceptional medically justified cases on their individual merits;
C. In the alternative, if this Hon’ble Court concludes that
Section 4(iii)(c)(I) is incapable of receiving such a purposive
interpretation, declare the said provision unconstitutional to the
limited extent that it mandates an inflexible age-based
disqualification without permitting consideration of exceptional
medically justified cases supported by objective medical evidence,
thereby resulting in arbitrary and disproportionate deprivation of
rights guaranteed under Articles 14 and 21 of the Constitution of
India.
D. Issue an appropriate writ, order or direction in the
nature of Mandamus directing Respondent No.5, the Appropriate
Authority under the Surrogacy (Regulation) Act, 2021, Nashik
Municipal Corporation, to reconsider the Petitioners’ application for
issuance of the Eligibility Certificate afresh in accordance with law
and in the light of the interpretation and directions issued by this
Hon’ble Court.
E. Issue an appropriate writ, order or direction in the
nature of Mandamus directing Respondent No.6, the District
Medical Board, Nashik, to examine the Petitioners’ case and issue
the Certificate of Medical Indication, if the Petitioners satisfy the
medical requirements prescribed under the Surrogacy (Regulation)
Act, 2021 and the Surrogacy (Regulation) Rules, 2022, in the light
of the judgment of this Hon’ble Court.”
5. When the Petition appeared before us on 01/09/2026,
we observed thus :-
“4 The Petition, therefore, involve interpretation of the provisions
of the Act of 2021 read with the Rules framed thereunder. It would
also have the involvement of Assisted Reproductive Technology
(Regulation) Act, 2021 as this enactment regulate the Assisted
Reproductive Technology clinics and the Assisted Reproductive
Technology banks, which is an organization responsible for
collection of gametes, storage of gametes and embryos and supply of
gametes to the Assisted Reproductive Technology clinics for their
use.
‘Gamete’ is defined in the Act as sperm and oocyte and ‘Gamete
donor’ is a person who provides sperm or oocyte to the object of
enabling an infertile couple or a woman to have a child.
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5 As it is the contention of the Petitioners that Petitioner No.1’s
eggs are not to be put to use, but they are seeking a donor who shall
be a Gamete donor within the meaning of the ART (Regulation) Act,
2021 and the interface between the two statutes alongwith the
medical opinion that is expressed by the experts, where the
Petitioners are undertaking the treatment and have made multiple
attempts through IVF, but not being successful, they want to resort
to the technology of surrogacy, but in the wake of the restrictions
and embargo imposed on the age limit of the intending parents, and
in this case the mother i.e. Petitioner No.1, they do not stand a
chance at the outset itself.
6 In the wake of the the issue that is arising before us, we deem it
appropriate to have an assistance through an Amicus curie and we
request the learned senior counsel Mr.Sharan Jagtiani to render his
assistance to us, in dealing with the reliefs in the Writ Petition.
We request the counsel for the Petitioner to furnish a copy of the
Petition to him, so that he shall be in a position to address the issue
that we have broadly framed in the backdrop the pleadings in the
Petition and the reliefs sought therein.
In the meantime, we also request the learned AGP to obtain
instructions from Respondent No.3 as well as Respondent No.6. We
also deem it appropriate to direct the learned counsel for the
Petitioners to serve a copy of the Petition upon the learned
Additional Solicitor General Mr. Anil Singh, so that he can choose to
mark appearance himself or relegate the matter to some competent
counsel representing Union of India.
We also deem it appropriate to issue notice to Respondent No.5,
which is an Authority established under the Nashik Municipal
Corporation. Hamdast granted.
We direct the Petition to be listed on 22/09/2026 on
Supplementary Board.”
6. By further order of 28/09/2026, we expected the
Ministry of Health and Family Welfare, Union of India as well
as Public Health Department of the State, alongwith the State
Assisted Reproductive Technology and Surrogacy Board and
the Appropriate Authority under the Surrogacy (Regulation)
Act, 2021 to file their affidavits-in-reply and expected the
pleadings to be completed, considering that X-1 as on date, was
54 years old and when the challenge was raised by her to the
embargo imposed for grant of Eligibility Certificate, as she has
crossed the maximum age limit, time was running short for
her.
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On the pleadings being completed and the Union of India,
the contesting party, having filed its reply and also the reply of
Respondent No.5 being placed on record, we directed the
Petition to be listed for hearing.
By consent of the learned counsel appearing for the
respective parties, we issue ‘Rule’ by making it returnable
forthwith.
7. According to the learned counsel for the Petitioners, the
impugned order violates the fundamental right of the
Petitioners guaranteed under Article 21 of the Constitution of
India and by placing reliance upon the decision in the case of
1
Suchita Srivastava Vs. Chandigarh Administration , it is
submitted that the Hon’ble Supreme Court has recognised that
a woman’s reproductive choice is an integral facet of personal
liberty under Article 21 and the reproductive autonomy
includes the freedom to make decisions concerning
procreation and it is protected by the constitutional guarantee
of personal liberty.
According to Mr.Utkarsh Pondkule, the learned counsel
for the Petitioners, the gestational surrogacy, as recognised
and regulated under the Surrogacy (Regulation) Act, 2021
constitute a lawful means through which an intending couple
may realise their reproductive aspirations where natural
conception or conventional assisted reproductive treatment
has failed. He make it clear that the Petitioners do not claim
an unrestricted or absolute right to surrogacy, but only seek a
fair, reasonable and constitutionally compliant application of
the statutory framework governing gestational surrogacy.
1 (2009) 9 SCC 1
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Contending that the Petitioners have undergone
prolonged infertility treatment and multiple unsuccessful IVF
procedures, the gestational surrogacy, as per the expert
medical opinion, is the only option available and in such
circumstances, their physical and mental fitness shall not
become an embargo in availing the limited choice available.
Further submitting that when the Parliament itself has
recognised gestational surrogacy as a lawful medical
procedure, it is contended that access thereto cannot be denied
through an interpretation, that would cause violence to the
object of the Legislation by ignoring the relevant medical
evidence and disproportionately restricting the exercise of
right, which is constitutionally protected in form of
reproductive choice. Therefore, according to the learned
counsel, the impugned order imposes a disproportionate
restriction upon the Petitioners’ right to dignity, decisional
autonomy and reproductive choice guaranteed under Article
21 of the Constitution and, hence, it is prayed to be quashed
and set aside.
8. We will refer to the submissions of the learned Amicus a
little later and at present, we would deal with the stand
adopted by the Union of India, Ministry of Health and Family
Welfare.
The Under Secretary to the Department of Health
Research, Ministry of Health and Family Welfare, Government
of India, has affirmed an affidavit on 21/10/2026 and
Mr.Singh, the learned Additional Solicitor General, would rely
upon the said affidavit.
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Mr.Singh would place reliance upon the report of the
Parliamentary Select Committee on Health and Family Welfare
in regards to the issue of prescribing age limits for men and
women for surrogacy services and according to him, the report
has suggested that the intending couple should be between the
age of 23 to 50 years in case of female and between 26 to 55
years in case of male on the day of certification so as to be
considered eligible to receive surrogacy services. It is also
submitted by him that the issue of age restriction in Section
4(iii)(c)(I) of the Surrogacy Act was referred to the expert
members of the National ART and Surrogacy Board, which
expressed its consensus with the recommendations of the
Select Committee of Parliament of India and further went to
add that the future of the child to be born through surrogacy is
of paramount importance and, hence, the National Board was
of the opinion that the existing provision restricting the age
limit appears to be appropriate.
The affidavit also states that various provisions of the
Surrogacy Act, including Section 4(iii)(c)(I) are already under
challenge before the Hon’ble Supreme Court in WP(C) No.756
of 2022 ( Arun Muthuvel Vs. Union of India ) and other
connected cases and an additional affidavit has been filed
before the Hon’ble Apex Court on behalf of the Union of India
and the matter is pending before the Apex Court for
consideration.
9. Relying upon the report of the Expert Committee,
Mr.Singh would submit that the Act has prescribed the age
bracket for a male and female and a married Indian woman
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and man, being intending couple, who have a medical
indication necessitating gestational surrogacy as per the
provision of Section 2(1)(r) of the Surrogacy Act.
In prescribing the maximum limit for receiving the
surrogacy services, it is urged by Mr.Singh that the age
criteria cannot be dispensed despite Petitioners having the
medical condition read with Rule 14 of the Surrogacy
(Regulation) Rules, 2022 and in fact, fixation of upper age
limit for men and women is purely a technical matter and was
done after consultation/studies of Experts in the field and
after much deliberation. According to Mr. Singh, the
prescription of the maximum age limit is to balance the
interests of the parents and the child, considering the trend of
delayed marriages in India. According to him, the rights and
welfare of the unborn child should not be neglected in the
process of fulfilling the desire of a couple to become parents, as
the child so born, also has a right to enjoy parental care at par
with the children born out of normal reproduction.
Reliance is placed by Mr.Singh upon the decision of the
Delhi High Court in W.P.(C) No.19380 of 2025 ( XX Vs. Union of
India & Ors. ), which has upheld age restriction under Section
4(iii)(c)(I) of the Act.
In addition, Mr.Singh would invoke the principle of law
laid down by the High Court of Kerala at Ernakulam in the
case of Sajithanand S. @ Sajitha Manoharan & Anr. Vs. Union
of India & Ors. (W.P.(C) No.31918 of 2025, when the writ
petition challenging the constitutional validity of age limit
prescribed in the Surrogacy Act failed and the Court observed
thus :-
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“22. The age restrictions are grounded on medical sciences,
ethical necessity and social welfare and they meet the
constitutional standards of reasonableness and proportionality.
Age restrictions are not an infringement of rights, but it acts as a
protective frame work. Regulation of reproductive technology is
not a denial of liberty, but a structured exercise of it.
24. The age limits prescribed under the Surrogacy
Regulations Act, 2021 are constitutionally valid and they represent
a carefully designed regulatory mechanism to ensure that
surrogacy is practised in a safe, ethical and non-exploitative
manner consistent with constitutional principles.
26. It is true that the right to make decisions relating to
reproduction and parenthood forms part of personal liberty under
Article 226 of the Constitution of India. But the said rights are not
absolute and are subject to reasonable restrictions imposed by the
law. The statutory restrictions regarding age governing surrogacy
are constitutionally valid and it has a rational link to the object and
purpose of the enactment. The restrictions regarding the age are
reasonable and it is not arbitrary and not disproportionate. The age
limits are clearly linked to the concerns of parental capacity,
health, longevity and the welfare of the child.”
10. Mr.Singh’s emphasis is on the report of the Expert
Committee on “Implication of Conception at Advanced Parental
Age” and he would submit that the said Committee was
constituted by the Department of Health Research, Ministry of
Health and Family Welfare, Government of India to examine
the implications of conception at advanced parental age on
maternal outcomes, offspring health, and long-term child well-
being with respect to upper age restrictions i.e. 50 years for
women and 55 years for men stipulated under the ART Act,
2021 and the Surrogacy Act, 2021. According to him, the
Committee comprised of eminent multidisciplinary experts in
ART, genetics, reproductive biology, paediatrics, clinical
psychology and social sciences, who undertook a
comprehensive and evidence-based evaluation and it
examined various aspects of advanced age parenting,
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including medical implications as well as psychological and
caregiving implications. The Committee, according to
Mr.Singh, highlighted that the parents of advanced age may
experience progressive decline in health, stamina and
functional capacity during the critical formative years of the
child and this decline may result in caregiving disruptions,
emotional insecurity and heightened psychological stress for
the child, thereby compounding the risks associated with
advanced parental age and impacting the child’s overall well-
being and development. According to him, by implementing
the age restrictions, the law aims to uphold the child’s right to
grow in an environment where they are not disadvantaged due
to their parents age or ability to care for them.
11. Mr.Singh, the learned ASG, would submit that the
Surrogacy Act has defined the term ‘intending couple’
alongwith an ‘intending woman’, who are entitled to avail
surrogacy, but definitely within the four corners of the statute.
According to him, surrogacy is permissible for an ‘intending
couple’ i.e. a legally married Indian man and woman and the
Act consider them as one unit for consideration. Focusing his
attention on the statutory mandate set out in Section 4(i) to
the effect that the surrogacy procedure is permitted to be
carried out only after satisfying the conditions specified in
clause (iii), he would submit that the statute make it
imperative to fulfill the conditions and this include the
Eligibility Certificate for an intending couple on fulfillment of
the conditions.
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12. Highlighting upon the condition of the maximum age
limit for the intending couple, in case of a female, it being
prescribed as 50 years and male as 55 years as on the date of
certification, according to him, the said provision contemplate
its compliance by the couple as a whole and individual age
parameters to each of them within the couple are prescribed,
but they are not individual bars nor individual restrictions and
the requirement is qua the couple itself. According to him, the
conjunctive nature of stipulation set out in Section 4(iii)(c)(I)
is clearly indicative of compliance with all the three
requirements, namely, (a) couple should be married, (b) age of
the female should be between 23 to 50 years (c) age of the
male should be between 26 to 55 years. Thus, according to
him, the age requirement is to be satisfied by both the
individuals and satisfaction of age requirement by one of them
would not give them the benefit of adopting the process of
surrogacy as ‘intending couple’.
To reflect upon the intention of legislature, Mr.Singh
would submit that in Section 4, when the legislature intended
to refer to an individual partner within a couple, it has
expressly done so, as Section 4(iii)(a)(I) provides that, ‘a
certificate of medical indication in favour of either or both
members of the intending couple or intending woman
necessitating gestational surrogacy from a District Medical
Board.’ According to him, the distinction of recognising either
partner, stands to reason since surrogacy may be required on
account of medical indication of either party and it is not
necessary that both the partners have medical indication,
which do not allow them to have natural pregnancy.
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Therefore, according to him, the legislature in its wisdom, as
and when it deem fit and necessary, has referred to the
members of the couple separately, but as far as the age criteria
is concerned, since the essentiality is to be determined as a
couple, it is necessary for both of them to ensure statutory
compliance. According to him, since there is no ambiguity in
the said provision, it shall be read as the intention of the
legislature, keeping in mind the objective of the Act, being to
balance the rights of parents and also achieve long-term
welfare of the child.
13. Mr.Singh is very assertive in his submission that since
there is no ambiguity in Section 4(iii)(c)(I) of the Surrogacy
Act, the plain and literal meaning of the provision must be
considered and even if the purposive interpretation is applied,
considering the purpose and intent of the Surrogacy Act,
according to him, it would also lead to same inference that both
the members of the intending couple must satisfy the age
criteria. His emphasis is on the opinion expressed in the report
of the National Board and the report of the Expert Committee,
which has expressed the serious concern about the medical
health of the intending couple and the long-term child care to
provided to the child born out of surrogacy, which may have
some impact on account of advanced age of the female even
though the male continues to remain in permissible age
bracket. He would submit that the purposive interpretation of
the provision would reflect that it must meet the intent of the
Act, namely, the betterment of the child and in no way, the
child shall be left in lurch in the wake of the fact that the
parents, on account of their advanced age, are unable to cater
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to his needs and this he intends to apply with regards to the
psychological implications of the advanced age on the child
development.
According to him, prescribing age criteria for intending
couple, thus help in striking balance both the medical and
psychological implications and this is what has been clearly set
out in the report, that being in the permissible age criteria not
only balances medical needs, but it also ensures the welfare of
the child since caregiving ability of the parents reduces with
the advancing age of the intending couple.
14. He would take benefit of the observations of the Delhi
High Court speaking through Justice Purushaindra Kumar
Kaurav, in the case of XX Vs. Union of India & Ors. , (WP(C) No.
19380 of 2025) on considering the “Report of the Expert
Committee on the Implications of Conception at Advanced
Parental Age”, observed thus :-
“20. Insofar as the respondents have placed reliance upon the
document titled “Report of the Expert Committee on the
Implications of Conception at Advanced Parental Age” , this Court
does not consider it necessary to adjudicate upon the medical
merits. The age bar under Section 4(iii)(c)(I) is a legislative choice
made by Parliament, and it is not for this Court to examine the
medical wisdom underlying that choice. Suffice it to observe that
the expert committee report reinforces the rationale for the age
restriction that Parliament has already imposed.”
In response to the Petition, the Union of India has,
therefore, adopted a specific stand that the legislative wisdom
in fixing the maximum age limit for the intending couple do
not call for any dilution merely because some hardship or
inconvenience is being faced by the Petitioners.
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15. Since we have requested the learned senior counsel
Mr.Sharan Jagtiani to assist the Court as an Amicus, he has
advanced his submissions by not adopting a contesting
approach, but in assisting the Court in arriving at a just
decision in order to deal with the Petition filed before the Court
in the background that the Petitioners are aggrieved by the
order dated 14/07/2026 refusing them the Eligibility Certificate
under Section 4(iii)(c) of the Surrogacy Act on the ground that
one of them i.e. X-1 has crossed the upper age limit prescribed
under the statute. According to him, what the Petitioners seek
is a harmonious and purposive interpretation of Section 4(iii)
(c)(I) of the Surrogacy Act to be read alongwith Rule 4 of the
Surrogacy Rules, 2022, so that the said provision meaningfully
result into accomplishment of the constitutional guarantees
enshrined under Articles 14 and 21 of the Constitution and
permit consideration of exceptionally medically justified cases
on their individual merits. According to Mr.Jagtiani,
alternatively the Petitioners have sought a relief of declaring
the provision unconstitutional to the extent that it mandates
inflexible age based disqualification, without taking into
consideration exceptionally medically justified cases and the
case of the Petitioners may be considered within that bracket.
According to the learned Amicus, this Court may not test
the validity of the provision as prayed for, but make out a way
for the Petitioners for exempting them from the rigours of the
upper age limit that has been prescribed under Section 4(iii)(c)
(I) of the Act. The learned Amicus has formulated two questions
for consideration and we deem it appropriate to reproduce the
same:-
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“(i) Whether Section 4(iii)(c)(I) of the Surrogacy Act prescribes
absolute and inflexible age limits which would render any intending
couple per se ineligible to avail of the provisions of the Act if they
are outside the stated age limits, or whether Section 4(iii)(c)(I) of
the Surrogacy Act must be interpreted in a manner where it is
sufficient compliance with the provision if one of the constituents of
the intending coupe is within the stated age limits.
(ii) In the event it is held that the age limits in Section 4(iii)(c)(I)
are absolute and inflexible, whether Section 4(iiii)(c)(I) is liable to
be read down, or declared unconstitutional to a limited extent,
insofar as it operates as an absolute, non-derogable bar admitting
no case-by-case exception for medically exceptional circumstances.”
16. The learned Amicus has taken us through the statutory
scheme of the Surrogacy Act, which came into force on
25/01/2022 alongwith an agnate statute in form of Assisted
Reproductive Technology (Regulation) Act, 2021 (for short,
“ART Act”) and by pointing out the similarity between the two
statutes, the learned Amicus would submit that the Surrogacy
Act has referred to the ART Act and the Board, which is
constituted under the said enactment under Section 2(1)(e), is
a common Board, in form of the National Assisted
Reproductive Technology and Surrogacy Board to exercise the
powers and perform the functions conferred under the said
enactment.
This Board, according to him, is responsible for advising
the Central Government on policy matters relating to
surrogacy and also to supervise the functioning of State
Assisted Reproductive Technology and Surrogacy Board.
Further, the ‘surrogacy procedure’ defined in the said
enactment under Section 2(1)(zf) involve all gynaecological,
obstetrical or medical procedures, techniques, tests, practices
or services involving handling of human gametes and human
embryo in surrogacy, the only difference being in case of
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Assisted Reproductive Technology, the embryo is placed in the
body of the mother, whereas in surrogacy, the same is placed
in the body of a surrogate mother.
17. According to Mr.Jagtiani, the Surrogacy Act does not
operate in isolation, but it must be read together with the ART
Act and rather the said two statutes, which came into force on
the same day, complement each other, as the ART Act seeks to
prevent the misuse of ART services and ensure followance of
safe and ethical procedure by the stakeholders, including the
persons who are desirous of becoming parents or those who
preserve gametes, embryos, or embryonic tissues for future
use due to infertility or any other medical concerns. The
definition of ‘Assistant Reproductive Technology’ under
Section 2(1)(a), involves all techniques that attempt to obtain
a pregnancy by handling the sperm or oocyte outside the
human body and transferring the gamete or the embryo into
the reproductive system of a ‘woman’. This ‘woman’, according
to Mr.Jagtiani, may be the ‘original (natural) mother’ or
‘surrogate mother’.
The transfer of embryo in the surrogate mother,
according to him, falls within the definition of ART and the fact
that she carries the child for the intending couple and does not
intend to be the child’s legal mother, does not alter the
character of the procedure. Thus, by specifically contending
that the two statutes together form a statutory framework,
which assist the intending couple under the Surrogacy Act and
the commissioning couple under the ART Act to seek
assistance of the reproductive technology through the
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procedure that has been set out and ultimately, they would
satisfy their desire to have a child, and according to him, the
child born out of the surrogacy or the child born with the
adoption of ART technology, shall enjoy the same right and in
case of a surrogacy, he/she shall be deemed to be a biological
child of the intending couple or intending woman and shall be
entitled to all the rights and privileges available to a natural
child under any law for the time being in force.
18. Though the learned Amicus clarify that no submission
shall be construed to call in question the legislative wisdom in
prescribing the eligibility conditions for the purposes of
regulating surrogacy and surrogacy procedure, and
particularly as prescribed in Section 4, as it impose certain
restrictions on a surrogate mother and has also imposed
conditions on the intending couple, including the age bracket
of each constituent of the said couple. According to him, the
report of the Expert Committee on Implication of Conception
at Advanced Parental Age, is a report which is prepared after
the two statues have come into force, and in any case, he would
submit that the report is submitted by the Expert Committee,
so as to examine the implications of conception at advanced
parental age on maternal outcomes, offspring health and long-
term child well being with respect to the upper age restrictions
for a man and a woman, under the ART Act, 2021 and
Surrogacy Act, 2021.
Not even for a moment, the factors highlighted in the
said report are questionable according to Mr.Jagtiani, and in
specific the aspect of psychological and caregiving implications
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of advanced parental age, but according to him, the said
factors are equally applicable to a child born out of surrogacy
or a child born with the aid of Assisted Reproductive
Technology.
It is in light of his specific contention that the two
statutes were drafted with an overlap over one another and
they being allied and cognate statutes, the learned Amicus
would urge before us that the question that falls for
consideration before this Court, through the facts highlighted
by the intending couple i.e. the Petitioners deserve an
appreciation also in light of the provisions of the ART Act,
which has received interpretation from various High Courts.
Inviting our attention to the condition of eligibility as
prescribed in the Surrogacy Act, and in specific Section 4 qua
the ‘intending couple/intending woman’, Mr.Jagtiani would
invoke the provisions in the ART Act, where ‘commissioning
couple’, is an infertile married couple who approach an ART
clinic or ART bank for availing its services. Though the ART
Act has not prescribed the minimum/maximum age limit for
the commissioning couple, the Act had defined ‘woman’ as any
woman above the age of 21 years, who approaches an ART
clinic/bank seeking assistance.
Comparing the two i.e. the ‘intending couple’ vis-a-vis
‘commissioning couple’, Mr.Jagtiani would submit that there is
no Eligibility Certificate contemplated under the ART Act. As
against this, by prescribing an eligibility criteria to be satisfied
under Section 4(iii)(c)(I), where the Eligibility Certificate shall
be obtained by the intending couple from the Appropriate
Authority on fulfilling the conditions,one of which being that
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the couple is married and the female in the couple is between
the age group of 23 to 50 and the male is between the age of 26
to 55 on the date of certification.
Since, according to the learned Amicus, the two statutes
form a scheme as they came into force on the same date and
each of them expressly incorporates the other, apart from the
fact that both the statutes are administered through common
institutions like the Board constituted under Section 17 of the
Surrogacy Act/the State Boards. It is in this background, he
would refer to precedents from various High Courts, involving
the provisions of the ART Act, which has not prescribed the
age limit for the commissioning couple, but in Section 21(g), a
duty is cast on the ART clinics/banks to apply the ART services
(i) to a woman above the age of 21 years and below the age of
50 years; and (ii) to a man above the age of 21 years and below
the age of 55 years.
The ratio flowing from those decisions is relied upon by
Mr.Jagtiani to submit that under Section 21(g), where the
benefit of ART services shall be availed within a particular age
bracket by a woman and a man separately, his submission is,
the ratio flowing from these decisions would also govern the
eligibility that is prescribed under the Surrogacy Act.
We would refer to the said decisions in brief, so as to
appreciate the submissions of the learned Amicus.
2
(1) Sanchita Ghosh & Anr. Vs. Union of India & Ors. ;
3
(2) Devayani S. & Anr. Vs. Union of India & Ors. which
is upheld by the Division Bench of Kerala High
4
Court in Union of India Vs. Devayani S & Ors..
2 2024 SCC OnLine Cal 12155
3 2025 SCC OnLine Ker 1516
4 2025 SCC OnLine Ker 11786
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5
(3) Shewta Tuteja & Anr. Vs. Union of India & Ors. ;
(4) Babitha A. Singh & Ors.Vs. State of Madhya
6
Pradesh & Ors. ;
(5) X2 Vs. Chief Medical Officer cum Civil Surgeon &
7
Ors.
In the aforesaid cases, according to Mr.Jagtiani, one of
the constituent of the ‘commissioning couple’, had crossed the
age limit, but the Courts have considered them together as a
couple for whom, there is no age limit prescribed, and merely
because one of the spouse in that couple was outside the age
limit prescribed, it is held that the bar in Section 21(g) was not
applicable. The Delhi High Court, while allowing a woman aged
50 years and 2 months to undergo transfer of cryopreserved
embryos, clarified that the statutory framework imposed age
restrictions individually upon men and women, and not upon a
‘commissioning couple’ as a ‘composite unit’ and the Court
permitted a woman above 50 to carry a pregnancy herself, by
specifically observing that, ‘ the object of the enactment is to
ensure ethical and safe ART practices and not to create
insurmountable barriers defeating legitimate continuation of
treatment processes already lawfully undertaken.”
19. The learned Amicus, therefore, would request the Court
to consider the issue before it not with a view point of whether
the prescription of the maximum age limit, independently for
the husband and wife in the intending couple is a prerogative
of legislation and whether or not the Court shall interfere with
the legislative wisdom, but according to him, the question shall
5 2026 SCC OnLine Del 4606
6 2026 SCC OnLine MP 25565
7 2026 SCC OnLine Guj 6712
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be considered from a point when a ‘couple’ – comprising of a
husband and wife, who seek a child through surrogacy and one
of them has crossed the maximum age limit, but the other
continued to be still in the bracket, then the interdiction that is
faced by one of them, shall not put the other in a
disadvantageous position.
In all the decisions cited before us, the learned Amicus
would submit that either the male or female in the
‘commissioning couple’ under the ART Act, who had crossed
the age limit was still permitted to participate in the process of
ART, as they were considered as a ‘composite unit’. Citing
Gujarat High Court decision, the learned Amicus would submit
that it quashed the rejection of the commissioning couple’s
eligibility to avail IVF, where the wife was menopausal and
above 50, while the husband was 54. The Court found that the
husband, “falls within the eligibility criteria” and the couple
was looked at as a unit.
20. The submission of Mr.Jagtiani is, much like the ART Act,
the Surrogacy Act prescribe no age limit in the definition of
‘intending couple’. But by contrast, where the surrogacy is
sought by a single woman, the Act has fixed age range in the
definition itself, by prescribing in Section 2(1)(s)- that the
‘intending woman’ must be between 35 and 45 years. In this
case, her upper age limit of 45 is lower than the age limit of 50
for a woman, who is a part of an ‘intending couple’.
According to him, if the submission of the learned
Additional Solicitor General Mr.Singh, based on the report of
the Expert is to be accepted, as it has projected the advanced
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age limit of the parents as an inherent disability to raise the
child and the likely duration of the parents’ presence in the
child’s life and it is evidently clear that when it is a single
woman, the maximum age prescribed is 45 years, but when
she comes forward for having a child through IVF alongwith
her partner/husband, then the age prescribed is 50, as the
responsibility will be shared and that is how the child’s care
and welfare is assured so long as one of them is within the
prescribed age limit. According to Mr.Jagtiani, if the ART Act
by Section 21(g) has included an individual prescription, and
if the Surrogacy Act is allied and cognate statute, he poses a
question as to why the same parameters shall not be made
applicable to the provisions of the Surrogacy Act, where one of
the component in an ‘intending couple’ is deprived of the
benefit of having a child through surrogacy only because
his/her’s spouse has crossed the age limit. It is, therefore, his
contention that the reason, logic and rationale applied by
various High Courts to Section 21(g) of the ART Act ought to
be applied with equal force to Section 4(iii)(c)(I) of the
Surrogacy Act, 2021.
21. Mr.Jagtiani, with reference to Article 14 of the
Constitution, would submit that if the two statutes are allied
statues and in fact, they form a single code and almost every
surrogacy permitted under the Surrogacy Act is carried out
through Assisted Reproductive Technology, which involve a
medical procedure to be carried out and then the embryo is
transferred to the surrogate mother or to the intending
mother, he would postulate the situations under the two
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different Acts, as in a couple who seeks IVF using donor eggs
and husband’s sperm, with the embryo transferred to the wife,
under the ART Act the couple is eligible, because the husband
is still within the age limit though the wife is 54 years.
Whereas a couple who seeks IVF using donor eggs and
husband’s sperm, but if the wife cannot carry a pregnancy and
the embryo is to be transferred to a surrogate, the prohibition
would come into operation, as the couple would be rendered
ineligible because the wife has crossed the maximum age limit,
she being 54.
By drawing a comparison between the two situations, it
is the submission of the learned Amicus that it would make
little sense to give the ART Act one interpretation and the
Surrogacy Act another, when surrogacy cannot take place
without ART, and rather in maximum number of surrogacy
cases, ART is involved.
Relying upon the well settled principle that Article 14
permits a classification only if it is founded on an intelligible
differentia which has a rational nexus to the object sought to
be achieved, he would submit that the only feature that
distinguished the second couple from the first is that the
mother is not able to carry the pregnancy and the couple
needs a surrogate. However, this feature has no rational nexus
to the object prescribed i.e. to assist the parents in having a
child by adopting artificial reproductive technology.
According to Mr.Jagtiani, the objectives which are highlighted,
so as to have the maximum age limit, namely, maternal health,
quality of gametes and parents’ ability to take care of the child
until childhood also has no nexus with this differentia that is
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created and it would be rather discriminatory for the two
types of parents depending upon the method they are adopting
i.e. IVF or surrogacy.
To treat the second couple less favourably than the first,
according to him, would result in discrimination, resting on no
intelligible differentia. According to him, if the provision is
open for two interpretations, the Court should prefer the
interpretation that avoids anomaly and keeps the provision
within the ambit of Article 14 and rather attempt to fulfill the
legislative intention and achieve the purpose and spirit of the
enactment and avoid any absurdity or practical
inconvenience.
According to Mr.Jagtiani, it would be most appropriate to
apply purposive interpretation to the provision in the
Surrogacy Act, as the Act do not intend to arbitrarily deny
opportunities for intending couple, but it aims in regulating
surrogacy within the structural legal framework. According to
him, there is no indication in the scheme of the Act to deny
eligibility to an intending woman upto her reaching age 51
years. It is also his contention that based on the assumption
that if the woman attains age 50 years and the man attains the
age of 55 years then they will not be able to cater to the future
of the child is also unreasonable as the longevity in the
country is on the rise and in any case, according to him,
motherhood is a deeply personal and fundamental aspect of
life and any interpretation that results in depriving a woman
of her right causing an irreparable loss to her would be
undoing the object underlying the Act.
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It is for these submissions, according to the learned
Amicus, it would be plausible to conclude that the Surrogacy
Act should be interpreted in a manner, where it would amount
to sufficient compliance of Section 4(iii)(c)(I), if one of the
constituents of the ‘intending couple’ is within the stated age
limit. In the facts of the case, since X2 is 53 years i.e. below
the age of 55 years, as stated in Section 4(iii)(c)(I) and X-1
alongwith X-2 as an ‘intending couple’, they can avail the
provisions of the Surrogacy Act notwithstanding that X-1 is
above the age limit stated in 4(iii)(c)(I).
By interpreting the provision in such a way, according to
Mr.Jagtiani, it is not necessary for this Court to examine the
constitutionality of the said provision and in any case, since
the Appropriate Authority retains the discretion under Section
4(iii)(c)(I) read with Section 36(h), it ought to be directed to
reconsider the Petitioners’ application in the exercise of that
discretion.
22. We have thoughtfully considered the submissions
advanced, by keeping before us a couple, who having
attempted to beget a child, was unable to do so and lastly was
medically advised to resort to ‘surrogacy’.
X-1 and X-2 before us is the ‘intending couple’, who seeks
recourse to the Surrogacy (Regulation) Act, 2021 and when
they collectively approached the Appropriate Authority
constituted under the Act, seeking an Eligibility Certificate, the
same was refused to them on the ground that the female in the
intending couple has crossed the upper age limit of 50 years
prescribed under Section 4(iii)(c)(I) of the Surrogacy Act. The
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Respondents have not disputed the couple’s marital status,
their medical history, their bona fide desire to bear a biological
child, their physical and mental fitness or any other statutory
requirement governing gestational surrogacy.
Therefore, the controversy involved in the Petition lies in
the narrow compass before us, which has the involvement of
the relevant provisions contained in Section 4 of the
Surrogacy Act.
Section 4 which exists in the statute book in form of
surrogacy and surrogacy procedure, contemplates that no
surrogacy or surrogacy procedure shall be conducted,
undertaken, performed or initiated, unless the Director or in-
charge of the surrogacy clinic and the person qualified to do so
are satisfied, for reasons to be recorded in writing, that the
following conditions have been fulfilled, namely,
“(a) the intending couple is in possession of a certificate of
essentiality issued by the appropriate authority, after satisfying
itself, for the reasons to be recorded in writing, about the fulfilment
of the following conditions, namely :-
(I) a certificate of a medical indication in favour of either or
both members of the intending couple or intending woman
necessitating gestational surrogacy from a district Medical Board.
(II) an order concerning the parentage and custody of the
child to be born through surrogacy, has been passed by a Court of
the Magistrate of the first class or above on an application made by
the intending couple or the intending woman and the surrogate
mother, which shall be the birth affidavit after the surrogacy child
is born; and
(III) an insurance coverage of such amount and in such
manner as may be prescribed in favour of the surrogate mother for
a period of thirty-six months covering postpartum delivery
complications from an insurance company or an agent recognised
by the Insurance Regulatory and Development Authority
established under the Insurance Regulatory and Development
Authority Act, 1999 (41 of 1999)
(b) … … …
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(c) an eligibility certificate for intending couple is issued separately
by the appropriate authority on fulfilment of the following
conditions, namely :-
(I) the intending couple are married and between the age of
23 to 50 years in case of female and between 26 to 55 years in case
of male on the day of certification;
(II) the intending couple have not had any surviving child
biologically or through adoption or through surrogacy earlier :
Provided that nothing contained in this item shall affect the
intending couple who have a child and who is mentally or physically
challenged or suffers from life threatening disorder or fatal illness
with no permanent cure and approved by the appropriate authority
with due medical certificate from a District Medical Board; and
(III) Such other conditions as may be specified by the
regulations.”
23. The Petition raises substantial questions concerning the
extent to which the eligibility criteria prescribed with regards
to the age bracket prescribed in clause (I) and the question put
forth for consideration before us is, whether this criteria can
be applied as an inflexible disqualification, despite the fact that
the intending couple has exhausted recognised infertility
treatment, and satisfied all other statutory requirements and
seek to avail gestational surrogacy on the basis of the
established medical opinion.
24. ‘Surrogacy’ is an arrangement whereby a woman (a
surrogate) carries the pregnancy and gives birth on behalf of
another person or couple, who become the child’s legal parents
after birth. There may be various reasons why surrogacy is
pursued and this may include reasons like infertility, danger of
undesirable factors of pregnancy or when the pregnancy in
natural way is medically impossible.
A surrogacy relationship or legal agreement involves the
person who carries the pregnancy and gives birth and the
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person or persons, who take custody of the child after birth.
The woman, who agreed to bear a child through surrogacy
from the implantation of embryo in her womb, is the ‘surrogate
mother’, provided such surrogacy is regulated by the
Surrogacy Act. A child through a surrogate mother can be
sought under the Surrogacy Act by an ‘intending woman’, who
in terms of 2(s) means an Indian woman, who is a widow or
divorcee between the age of 35 to 45 years or the ‘intending
couple’, defined in Section 2(r), as a couple who have a medical
indication necessitating gestational surrogacy and who intend
to become parents through surrogacy.
‘Couple’ for the purposes of the Act means the legally
married Indian man and woman above the age of 21 years and
18 years respectively.
The Surrogacy (Regulation) Act, which received the
assent of President and came into force on 25/12/2021, is an
Act to constitute National Assisted Reproductive Technology
and Surrogacy Board, State Assisted Reproductive Technology
and Surrogacy Boards and for appointment of appropriate
authorities for regulation of practice and process of surrogacy
and for matters connected therewith or incidental thereto.
The Statement of Objects and Reasons in introducing the
Surrogacy Act indicate thus :-
“India has emerged as a surrogacy hub for couples from different
countries for past few years. There have been reported incidents of
unethical practices, exploitation of surrogate mothers,
abandonment of children born out of surrogacy and import of
human embryos and gametes. Widespread condemnation of
commercial surrogacy in India has been regularly reflected in
different print and electronic media for last few years. The Law
th
Commission of India has, in its 228 Report, also recommended for
prohibition of commercial surrogacy by enacting a suitable
legislation. Due to lack of legislation to regulate surrogacy, the
practice of surrogacy has been misused by the surrogacy clinics,
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which leads to rampant of commercial surrogacy and unethical
practices in the said area of surrogacy. In the light of above, it had
become necessary to enact a legislation to regulate surrogacy
services in the country, to prohibit the potential exploitation of
surrogate mothers and to protect the rights of children born
through surrogacy.
25. The Surrogacy (Regulation) Bill, 2019 provided for
various key aspects and as it focused upon permitting ethical
altruistic surrogacy to the intending infertile Indian married
couple between the age of 23-50 years and 26-55 years for
female and male respectively. The Bill, so introduced,
contemplated the intending couples should be legally married
for at least five years and should be Indian citizens to
undertake surrogacy or surrogacy procedure and it also
prescribed that the surrogate mother should be a close relative
of the intending couple and should be an ever married woman
having a child of her own and she should be between the age of
25 to 35 years.
The Surrogacy (Regulation) Bill 2019, as passed by the
Lok Sabha on 05/08/2019, was referred to the Select
Committee comprising of 23 Members of Rajya Sabha on a
motion adopted by House for examination of the Bill and
present its report.
The Select Committee submitted its report to the
Parliament of India (Rajya Sabha) by taking note that,
“Surrogacy per se and The Surrogacy (Regulation) Bill 2019,
in particular, is a unique amalgamation of social, ethical,
moral, legal and scientific issues and it is necessary to
harmonise the conflicting interests inherent in the process of
surrogacy to ensure betterment of child while protecting
rights of surrogate mother.”
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With reference to the legal issues relating to surrogacy
being manifested in number of court cases, the vexatious issue
debated all over the world and the prominent among it,
whether both commercial and altruistic surrogacy be legalised
and regulated to protect the rights and interests of all the
parties and at the same time, ensuring human dignity,
surrogacy in various forms all over the world were discussed.
With two extreme paths available, some of the countries
permitting commercial surrogacy and other countries where
surrogacy in all forms was banned, it was deemed appropriate
to find a midway, which facilitated surrogacy but in a regulated
way by striking a fine balance between the two squarely
opposite ideas and it was observed that the law is to act both as
an ardent defender of human liberty and an instrument of
distributor of positive entitlements and it must keep pace with
the emerging/developing technologies, so that their positive
benefits could be availed by those in need.
The Report perceived the Surrogacy (Regulation) Bill,
2019 as a step which seeks to regulate surrogacy procedure in
a way to stop exploitation of poor vulnerable woman; to ensure
protection of rights of the child born out or surrogacy and to
facilitate needy infertile couple and widow and divorced
woman to have child to complete their family. The Bill,
therefore, prescribed for prohibiting commercial surrogacy
and allowing only altruistic surrogacy, on par with countries
like Australia, Canada, Netherlands, Israel, Vietnam, United
Kingdom etc.
26. The Surrogacy Act, therefore, emanated from the need of
regulating the procedure, which in absence of any lack of
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legislation, was susceptible of misuse and even the Law
th
Commission of India in its 228 Report, recommended
prohibiting commercial surrogacy, as due to unregulated
procedures being followed, it was leading to rampant
commercial surrogacy and unethical practices and a statute
was needed to regulate the procedure of surrogacy in India.
The Report submitted by the Select Committee, after due
deliberation in various meetings, discussed the issue of single
woman, widows and divorcees and while discussing the
availability of this procedure for an ‘intending woman’, who is
a widow or divorcee, it was observed that there may be
conditions under which a single woman genuinely needed to
avail surrogacy option to have a child and one such situation
was cited, where a young age widow, who is otherwise capable
but cannot carry a child because of fear of social stigma
attached to pregnancy by a widow. Noting that she cannot
explain to everyone that the child in her own womb is of
surrogacy and, therefore, it was opined that such single person
should be given option of surrogacy within permitted
regulation under the Bill. A divorced lady was also found to be
in a similar situation, who decide not to re-marry, but is
desirous of having a child. In the wake of the above, single
woman (divorcee or widow) was made eligible for
commissioning surrogacy, by amending Clause 4 and the
expression ‘single woman’ was introduced by defining
‘intending woman’ in Section 2(r)(a).
27. From a careful reading of the Report of the Select
Committee, with the general recommendations contained
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therein, we find the comparison between the Assisted
Reproductive Technology (Regulation) Rules, 2022 vis-a-vis
Surrogacy (Regulation) Bill, 2019 and most of the
stakeholders, as recorded, demand that the ART Bill could
have been brought before the Surrogacy (Regulation) Bill,
2019, as there is no separate surrogacy clinic to undertake the
surrogacy procedure and ART clinics are rather undertaking
the surrogacy procedure and, therefore, an opinion was
expressed that they need to be regulated first.
28. The Department of Health Research informed the
Committee that the Surrogacy Bill is based on social, legal,
ethical and moral aspects, whereas Assisted Reproductive
Technology Bill addresses highly technical, medical and
scientific aspects. Further, surrogacy involves a third person
other than the intending couple and exploitation of the third
party was becoming rampant, while ART involved unethical
practices by the ART clinics and banks and it is in this
background, the Committee sought opinion of the Department
of Legal Affairs, Ministry of Law & Justice, which opined that
it is for the administrative Ministry to explain as to why ART
Bill 2019 should be passed before passing of Surrogacy
(Regulation) Bill, 2019 or otherwise in terms of the objectives
of both the legislations.
The Select Committee expressed its agreement with the
opinion of the Department of Health Research that the intent
of the two Bills was different and they should be dealt with
separately, but the Committee expressed its opinion as below :-
“The Committee finds that the Surrogacy (Regulation) Bill,
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2019 also involves highly technical, scientific and medical
aspects, which would appropriately be addressed through ART
Bill. There is hardly any clinic in the country which provides
only surrogacy services. The Committee also finds that the
surrogacy clinics as defined in Clause 2(zd) of the Bill includes
centers or labs conducting ART services, in-vitro fertilization
services, etc. The Surrogacy (Regulation) Bill also deals with
such highly medical terminologies as storage of embryo,
gamete, oocyte etc. which could better be dealt with in the ART
Bill for the purpose of their regulation.”
The Committee, therefore, recommended that the ART
Bill should be brought before the Surrogacy (Regulation) Bill
2019, so that all the highly technical and medical aspects could
be properly addressed in the Surrogacy (Regulation) Bill,
2019. It also recommended that the National and State Boards
constituted for surrogacy regulation shall also act as the
Boards for regulation of ART.
29. Surrogacy is a beacon of hope for individuals and couples
unable to conceive naturally.
Globally, surrogacy laws differ dramatically ranging from
full legality to outright ban with diverse regulations across
globe. The statement of objects and reasons in introducing the
Surrogacy (Regulation) Act, 2021, when compared with the
statement of objects and reasons of the Assisted Reproductive
Technology (Regulation) Act, 2021, would indicate that India,
over the years, had become one of the major centres of global
fertility industry, with reproductive medical tourism becoming
a significant activity. Clinics in India are equipped to offer all
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ART services, including genetic gamete donation, intrauterine
insemination, in-vitro fertilisation, pre-implantation and
gestational surrogacy. However, it was found that the
standardisation of protocols was still inadequate and there
was no law regulating the ART and need was felt to regulate
the same, as it was necessary to protect the affected women
and children from exploitation. It was also necessary to
regulate ART clinics and banks by establishing a Board, which
could supervise over the procedures that are carried out in the
clinics and the banks.
The focus on enacting the Surrogacy Act was to
transform the form of surrogacy from commercial surrogacy
to an altruistic surrogacy, which does not involve any charges,
expenses, fees, remuneration or monetary incentive of
whatsoever nature except bearing of the medical expenses for
the surrogate mother and insurance coverage provided.
30. The word ‘surrogate’ with its original and Latin term
‘surrogates’ meaning a substitute person appointed to act in
place of another. In the wake of growing cases of infertility
and technological advances like the Assisted Reproductive
Technology, resulting into a pregnancy by handling the sperm
or oocyte outside the human body and transferring the gamete
or embryo into the reproductive system of a woman, was
received with all hope for the couple desirous to have a child.
The conventional mode of a couple not able to bear a child,
opting for adoption, was substituted by the unconventional
Assisted Reproductive Technology, where the pregnancy is
caused by artificial or partially artificial means with the aid of
Assisted Reproductive Technology clinic, which is equipped
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with requisite facilities and Medical Practitioners registered
with the National Medical Commission for carrying out the
procedure related to the Assisted Reproductive Technology.
This procedure also has involvement of the ‘Assisted
Reproductive Technology Bank’ meaning an organisation
which is responsible for collection of gametes, storage of
gametes and embryos and supply of gametes to the clinics or
their patients, who are desirous of obtaining the services of the
clinic or the bank for giving birth to a child through the use of
ART.
31. The ART Act,2021, which received the assent of the
President on 18/12/2021, but brought into force on the same
day as the Surrogacy (Regulation) Bill 2019, was enacted for
regulation and supervision of the clinics and banks offering
the assisted reproductive technology, so as to prevent its
misuse and have safe and ethical practices being applied at
various stages of the procedure.
The ‘assisted reproductive technology’, being defined in
the ART Act, involved all those techniques for obtaining a
pregnancy by handling the sperm or the oocyte outside the
human body and transferring the gamete or embryo into the
reproductive system of a woman, who may be either the
natural mother or a surrogate mother.
The ART Act, 2021 defines a ‘woman’ to be any woman,
above the age of 21 years, who approaches the ART clinic or
bank for availing its authorised services.
All cases of surrogacy would involve assisted
reproductive technology as the sperm or the oocyte shall be
handled outside the human body and then transferred into the
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reproductive system of a woman. For the purposes of the ART
Act, it is the ‘commissioning couple’, who would seek
assistance of the ART clinic/bank and as per Section 2(e) of
the Act, and it means an infertile couple, who seeks assistance
of the ART clinic/bank. ‘Infertility’ is defined as inability to
conceive after one year of unprotected coitus or other proven
medical condition preventing a couple from conception.
32. The Surrogacy Act and the ART Act having come into
force on the same day with their object unfolded, through the
statement of objects and reasons as well as preamble , we have
compared the provisions of the two statutes.
Reading of the two statutes would reveal that they are
part of a single Code and we agree with the submissions of the
learned Amicus that the two statues are allied and cognate
statutes and they were brought into force on the same day,
though the ART Act was passed by the Parliament a few days
before the Surrogacy Act received the assent.
8
In J.K.Steel Ltd. Vs. Union of India & Ors. , the Apex
Court was dealing with the Central Excises and Salt Act, 1944
and the Tariff Act, cognate legislations and it was noted that
they are pari materia i.e. they form one code and, therefore,
they must be taken together as forming one system while
interpreting and enforcing each other. It is by reading the two
statutes, it was held that duty cannot be considered as an
additional duty over and above the duty imposed under entry
26AA of the First Schedule of the Act.
As per Justice G.P.Singh on Principles of Statutory
th
Interpretation (15 Edn.), :-
8 AIR 1970 SC 1173
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“As stated by Lord Mansfield: ‘Where there are different statutes in
pari materia and not referring to each other, they shall be taken
and construed together, as one system and as explanatory of each
other.’
The meaning of phrase pari materia has been explained in
American case in following words:
“Statutes are in pari materia which relate to same person or thing,
or to the same class of persons or things. The word par must not be
confounded with the word simils. It is used in opposition to it-
intimating not likeness merely by identity. It is phrase applicable to
public statutes or general laws made at different times and in
reference to same subject.”
33. Pertinent to note that each of the Act incorporates the
other and what is pertinent to note is that both the Acts are
administered through the National Assisted Reproductive
Technology and Surrogacy Board constituted under Section 17
of the Surrogacy Act and the same Board also supervises the
implementation of the ART Act. Procedurally speaking, the
process of Assisted Reproductive Technology, which is made
applicable to obtain a pregnancy by handling the sperm and
oocyte i.e. the gametes outside the human body and upon its
fertilisation, in form of an ‘embryo’, the process contemplates
its transfer into the reproductive system of a ‘woman’.
ART Act does not restrict the scope of this woman and
she can be a surrogate or a natural mother, who after the ART
procedure carries the embryo into her own body to give birth
to a child. The surrogacy, which is largely prevalent, is
gestational surrogacy in which an embryo is implanted in the
surrogate mother and such surrogacy contemplates an
embryo to be created outside the body, ordinarily through IVF
in the surrogacy clinic and then transferred to the surrogate.
The procedure of surrogacy, therefore, necessarily has the
involvement of Assisted Reproductive Technology and the
procedure contemplated under Section 2(1)(a) is not
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restricted by the legislature and it is kept open by merely
permitting transferring of the gamete or embryo into a
reproductive system of a ‘woman’.
The Surrogacy Act, which defines the term ‘surrogacy
procedures’ in Section 2(1) (zf) covers all gynaecological,
obstetrical or medical procedures, techniques, tests, practices
or services involving handling of human gametes and human
embryo leading to surrogacy, although Section 2(1)(zd)
defines ‘surrogacy’ to mean a practice whereby one woman
bears and gives birth to a child for an intending couple with
the intention of handling over such child to the intending
couple after the birth.
Thus, reading of the two statutes would lead to an
inference that they are to be read together, as the Surrogacy
Act necessarily involves the Assisted Reproductive Technology
even for a surrogate mother. The Surrogacy (Regulation)
Rules, 2022 framed in exercise of the powers conferred by
Section 50 of the Surrogacy (Regulation) Act, 2021, by Rule 14
suggests as to when a woman may opt for surrogacy and this
include an intended parent or woman, who has repeatedly
failed to conceive after multiple In vitro fertilization or Intra-
cytoplasmic sperm injection attempts, which are nothing but
assisted reproductive techniques and if this attempt is not
successful, then a woman may opt for surrogacy.
34. As we take note of the interface between the two
statutes, which came into force on the same day, we must also
take note of the eligibility criteria prescribed therein.
The Surrogacy Act mandates that the ‘intending couple’
should possess an Eligibility Certificate issued in their favour
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separately by the Appropriate Authority and it is necessary
that the couple is married and the female in the couple is in the
age bracket of 23 to 50, whereas the male is between the age
bracket of 26 to 55 on the day of certification.
As far as the ‘intending woman’ is concerned, who is also
entitled to avail the benefit of surrogacy, she can be widow or a
divorcee and since she is all alone, her age must be in the
bracket of 35 to 45 years.
As against this, under the ART Act, no age limit is
prescribed for a ‘commissioning couple’ and the woman, who is
entitled to avail the benefits of ART is the one, who has crossed
21 years of age.
Under Section 21, which has cast the general duties on
the ART clinics and banks, clause (g) prescribes that it is open
for the clinics to apply the assisted reproductive technology
services to a woman, who is in the age bracket of 21 years and
50 years and a man in the age group of 21 years and below the
age of 55 years.
It is this age bracket with which we are concerned, as we
have a case where the intending couple, who was desirous of
availing surrogacy has been refused the Eligibility Certificate
because one of the components of the ‘intending couple', being
the female, has crossed the maximum age prescribed i.e. 50
years.
35. A somewhat similar issue received consideration from
various High Courts under the provisions of the ART Act,
where one of the constituent member of the ‘commissioning
couple’ was beyond the age range as set out in clause (g) of
Section 21.
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In case of Sanchita Ghosh Vs. Union of India (supra),
which is the fountainhead of all the Judgments, the Calcutta
High Court dealt with the challenge to the vires of Section
21(g) and noted that the ART Act defined ‘woman’ and
‘commissioning couple’ separately and ‘woman’ for the
purposes of the Act is any woman above age of 21 years, who is
desirous of availing ART services. In the definition of
‘commissioning couple’, there is no age limit prescribed, but
clause (g) of Section 21 of the ART Act imposes a restriction on
the clinic in extending the benefit of ART services and such
services can only be extended to a woman above the age of 21
years and below the age of 50 years and to a man above the age
of 21 years and below the age of 55 years.
It is in the peculiar facts, when a woman, petitioner No.1
being married to a man, petitioner No.2, exceeded the age
limit, but she herself continued to be within the age bar
prescribed i.e. below 50 years, made a grievance about her
predicament that in view of the bar prescribed in clause(g)(ii)
of Section 21, as the petitioner No.2-the husband is debarred
from approaching the appropriate clinics for ART, she as a wife
is also deprived of availing the ART services, as they being
married to each other constituted a ‘commissioning couple’
within contemplation of the Act.
The female in this ‘commissioning couple’ urged that
such debarment fall upon her only because she is a married
woman and had not she been in the matrimonial relationship,
then there was no restriction imposed as to the age when she
could have availed the ART services.
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Dealing with this contention, the Single Judge of Calcutta
High Court emphasized on the thrust of the statute in the
following words :-
“11. As such, the thrust of the statute is two-fold- first, it is to
provide a healthy channel for couples who are willing to have a baby
but are unable to do so due to certain inability, clinical or otherwise,
to avail of assisted reproductive technology and second, to regulate
and govern such process in order to curtail rampant abuse and
exploitation of such eager couples by unruly and unlawful elements.
12. The purpose is noble and as such has to be read in a
liberal context insofar as the beneficiaries of the statute, that is,
childless couples are concerned.
13. The first thing which strikes the eye even on a primary
reading of the statute is that there is no specific bar or age limit in
respect of ‘commissioning couples’ for availing assistive
reproductive technologies.
14. The bar is stipulated in Section 21(g) separately and
specifically in respect of women and men,described independently
by their genders.
15. However, whereas a woman has been separately defined
in Section 2(1)(u), there is no such definition of a man under the
statute.
16. Since Section 2(1)(e) defines a ‘commissioning couple’
independent of a ‘woman’, it has to be construed that the said terms
have been used and intended to be used separately.
17. Whereas under Section 2(e) a commissioning couple is an
infertile married couple who approach for assistive technology,
Section 21(g) does not put in any rider to restrict their collective
age and/or their individual age limits, if acting as a couple.
18. On the other hand, the restriction put in is to an
individual man or a woman who is apparently not married or does
not come within the purview of commissioning couple.”
It is in this conundrum, it is held that two interpretations of
the bar stipulated under Section 21(g)(i) vis-a-vis a woman
are possible, the first and restrictive interpretation being that
a woman as contemplated in Section 21(g) is a woman, who
does not fall within the purview of ‘commissioning couple’ and
the second, a more liberal view i.e. that the Section
encompasses woman as a class- both in or outside matrimony.
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Noting that the restriction in Section 21(g)(i) is specifically
applicable to a woman irrespective whether she is married or
is not married, it was pertinently noted that, “by applying the
said test, the petitioner No.1 is a woman who, by chance, is in a
matrimonial bond but remains a woman within the
contemplation of the statute. It is in this context, the Court
declared as follows :-
“28. In so taking into consideration, we have to take into
account that collectively as a ‘commissioning couple’, there is no
age limit or upper ceiling of age.
29. Forging the said lack of restriction for commissioning
couples with Section 21(g)(i) and (ii), the only possible
interpretation is that unless the restriction is applicable to both the
spouses who comprise of the commissioning couple, there is no bar
in the commissioning couple to approach the appropriate clinic for
assistive reproductive technology services.
30. In the event either the woman or the man comprising the
commissioning couple are eligible to have assistive reproductive
technology, there is no reason why the bar stipulated for individual
women and men should be incorporated into the purview of the
commissioning couple as well. The age-related ineligibility of one of
the spouses need not affect the other, if they comprise of a
‘commissioning couple’.
31. Thus read, the bar available in Section 21(g), clauses (i)
and (ii) shall be read as follows:-
i) If a commissioning couple approaches a clinic/bank for
assisted reproductive technology services, no upper age
limit restriction will be applicable to them unless both
spouses of the commissioning couple are debarred
respectively under sub-clauses (i) and (ii) of sub-Section (g)
of Section 21 of the 2021 Act.
ii) In the event either of the couples qualify in respect of the age
limits as stipulated in Section 21(g), he or she can approach
the clinic to have assisted reproductive technology service,
irrespective of the fact that he or she is the constituent of a
commissioning couple and her spouse is not eligible age-wise.
iii) In the second scenario above, the commissioning couple, as a
commissioning couple, shall be permitted to avail the
facilities of assisted reproductive technology services, since
there is no bar on a commissioning couple acting as such, to
have such reproductive technology irrespective of any age
bar.
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iv) It is made clear that in the event one of the spouses is eligible
under Section 21(g) and the other is not, it will be at the
option of the clinic whether or not to use the gamete donated
by the ineligible spouse in the process of assisted
reproductive technology.”
36. The Calcutta High Court in Sanchita Ghosh , that the bar
in Section 21(g)(i) applies to a woman “irrespective of
whether she is or is not married” and a commissioning couple
as such has no age limit, it was held that 21(g) creates ‘no
unreasonable discrimination between married and unmarried
woman and was intra vires’ and the challenge to the said
provision was rejected, by holding that on being properly
construed, no such discrimination arises.
37. This decision was followed by various High Courts and
though various decisions are placed before us, we would refer
to some prominent amongst them and this include the decision
of Kerala High Court in Devayani S. Vs. Union of India (supra),
where the Union of India urged that the spouses being the
commissioning couple, must satisfy both limits in Section
21(g) simultaneously.
The Kerala High Court rejected the contention and it
noted that the Parliamentary Standing Committee had before
it a suggestion that “the combined age of the couple (woman
and man) should not be beyond 90 years” and held that
Parliament has consciously omitted incorporating any age
criteria for a ‘commissioning couple’. The Kerala High Court
was dealing with a situation where the male component in the
commissioning couple had surpassed the age of 55 years and
despite taking recourse to IVF procedures, they could not
procreate a child.
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In order to have insight of the legislative intent in
introducing Section 21(g), reference was made to Report
No.129 of the Parliamentary Standing Committee on Health
and Family Welfare Suggestions on clause 21(g) and the
Committee Recommendation was specifically noted as below :-
“DEPARTMENT'S RESPONSE:
4.14.16 The criterion of age limit for a man and woman to avail ART
services has been drafted in consonance with the provisions of the
Surrogacy Bill 2019.
OBSERVATIONS/RECOMMENDATIONS:
4.14.17 The Committee observes that the DHR has agreed to the
stakeholders' suggestions to remove the phrase "legal age or
marriage" from the definition of woman for approaching an ART
centre as lower age of marriage is acceptable in some religions. The
Committee observes that the ICMR Guidelines stipulates minimum
of 20 years of age for woman availing ART services. The Committee
has already recommended removal of the term "legal age of
marriage" and prescribed that the specific age i.e. 21 years in
definition of "woman" as mentioned in the Bill under clause 2(x),
therefore, the Committee reiterates the minimum of 21 years for
woman and man for availing ART services. The upper age limit for
woman and man may be 50 and 55 years, respectively, as
recommended by the Select Committee on Surrogacy (Regulation)
Bill 2020.
4.14.18 Subject to the above recommendation, the clause is
adopted".
38. In this background, the observations of the Kerala High
Court are most relevant and we reproduce the same :-
“16. A careful reading of the above suggestions reveals that the
Parliamentary Standing Committee had suggested the upper age
limit for women and men not to exceed 45 and 50 and the couple's
combined age (woman and man) not to surpass 90 years to draw a
parallel with the age restrictions in the Adoption Regulation.
Nevertheless, the Parliament has consciously omitted incorporating
any age criteria for a "commissioning couple", possibly recognising
the distinct nature of ART services and the procedures for adopting
a child.
17. … … …
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20. A holistic understanding of the Act and the associated ART
procedures and services reveals that the only legal requirement
nd st
that the 2 petitioner has to comply with to enable the 1 petitioner
to apply the ART procedure is to give his consent in Form 8,
undertaking that he would acknowledge the child born through the
procedure as his legal heir.
st
21. In essence, the 1 petitioner's eligibility to apply for the ART
nd
procedure operates independently despite the 2 petitioner's
nd
ineligibility, provided the 2 petitioner gives his consent for the
procedure. Hence, when a woman wants to undergo an IVF
procedure, only her age is considered relevant, irrespective of her
husband's age, and the same principle applies conversely to men.
The above interpretation leads to an inevitable conclusion that the
legislature has treated men and women as distinct legal entities
under the Act rather than imposing uniform couple-centric
legislation.
22. On the contrary, if the respondents' contention is accepted that
both spouses must satisfy the age criteria, it would create an
unconstitutional classification, treating married women and single
women as separate and distinct classes. Take, for example, a
hypothetical situation where a married woman is ineligible for an
ART procedure solely because her husband has surpassed the age
limit; the woman would become eligible immediately on her legal
separation or becoming a widow. Such a classification would be a
fallacy and would put married women at an unfair disadvantage
when compared to single women to access ART procedures. It can
never be presumed that the Parliament intended such an
inequitable classification within a benevolent statute like the Act. It
is a well-established legal principle that no one can supplement
conditions not explicitly provided in the statute. Without any
express provision in the Act restricting commissioning couples on
the basis of their composite age, there is no legal bar in a woman
who is otherwise eligible under Section 21 (g) (i) from applying the
ART procedure even if her husband has surpassed the age limit. The
same rationale applies to men, ensuring that single and married
individuals enjoy equitable access to reproductive assistance. The
th
above discussions conclude that there is no legal bar for the 4
st
respondent to apply the ART procedure on the 1 petitioner. The
experience of childlessness is a silent anguish known to only those
who walk that path.
In light of the above discussions, I answer the question in favour
st
of the 1 petitioner by allowing the writ petition and directing the
th st
4 respondent to provide ART services to the 1 petitioner as per
nd
the provisions of the Act after obtaining the consent of the 2
petitioner.”
39. A somehow similar approach was adopted by Delhi High
Court in Shewta Tuteja & Anr. Vs. Union of India & Ors.
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(supra), when the petitioner No.1 while within the age
bracket, created six embryos, which were cryopreserved and
by applying the purposive interpretation, it was held that the
age restriction under Section 21(g) of the Act applies at the
stage of initiation of ART treatment and cannot bar
continuation of a lawfully commenced IVF process involving
cryopreserved embryos, as the Court recognised the
reproductive autonomy, decisional privacy, and personal
liberty under Article 21 to include the right to utilise
cryopreserved embryos created during a period of statutory
eligibility
Recently, the Gujarat High Court in X2 Vs. Chief Medical
Officer cum Civil Surgeon & Ors. (supra), a decision dated
02/09/2026, once again applied the same analogy, when the
petitioners, who lost their 25 year-old-son to suicide, sought
IVF after the wife become menopausal, but by holding that the
upper age bar under Section 21(g) operates individually qua
the man and woman and not collectively, when the couple act
as unit, permitted to avail IVF services, despite the wife having
crossed 50 years of age and the husband being within the
prescribed age limit of 55 years.
40. We do not intend to multiply the pronouncements of
various High Courts, as various other decisions where either of
the component in the ‘commissioning couple’ had crossed the
age bracket, but the other had not and in such a situation the
Court considered the collective age of the commissioning
couple and deemed it appropriate to permit availing of ART
services through the ART clinic.
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41. In the reply affidavit responding to the challenge in the
Petition, while justifying the prescription of the age limit for
man and woman for surrogacy services, reference is made to
the report of the Parliamentary Select Committee on Health
and Family Welfare, and in particular paragraph 4.54 thereof
is relied upon. The said paragraph in the Report of the Select
Committee mentions that consequent to the deletion of clause
2(p), which existed in the Bill, to be read with clause 2(r), 4(ii)
(a) and 4(iii)(a)(I) provide the eligibility criteria for availing
surrogacy procedure.
A serious objection was raised to the definition of term
‘infertility’, as the inability to conceive after five years of
unprotected coitus on the ground that it was a too long period
for a couple to wait for the child. It was urged that World
Health Organisation defines ‘infertility’ as a disease of the
reproductive system defined by the failure to achieve a clinical
pregnancy after 12 months or more by regular unprotected
sexual intercourse. It was, therefore, opined that the period of
five years required for availing the procedure of surrogacy
needs to be relaxed . An objection was also raised as regards
the condition of obtaining the certificate of infertility, as it
would be insulting and offending and, therefore, it was
proposed to revise the said clauses.
42. The Department of Health, however, justified the period
of five years as it provide the intending couple the opportunity
to exhaust all the possible means of having a child of their own,
rather than take resort to the surrogacy procedure in haste.
The Committee, however, was not convinced with the
submission of the Department, as it was of the view that the
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period was too long in cases where normal pregnancy is ruled
out for N number of reasons and it is medically proven beyond
doubt that surrogacy is the only option. The Committee also
expressed that the requirement of obtaining a certificate of
proven infertility is not at all justified.
Therefore, the Committee recommended deletion of
Clause 2(p).
Consequent to the deletion of Clause 2(p), which defined
‘infertility’, the Committee recommended that Clause 2(r),
which defined ‘intending couple’, as the couple who was
medically certified as ‘infertile couple’, was sought to be
amended as follows:
“Intending couple” means a couple who have a medical indication
necessitating gestational surrogacy and who intend to become
parents through surrogacy.”
As we have already noted that in regards to a widow or a
divorcee who is desirous of having a child, but on account of
social stigma attached to her pregnancy, she may not be able to
openly carry the pregnancy and surrogacy become the last
option. Under Section 2(s), an ‘intending woman’ was defined
to cover a widow or a divorcee between the age of 35 - 45 years
who was desirous of availing surrogacy.
43. The learned ASG, Mr. Singh, has placed heavy reliance
upon the Report of the Expert Committee on the Implications
of Conception at Advanced Parental Age and this report is
submitted by an Expert Committee appointed by the
Department of Health Research, Ministry of Health and Family
Welfare, to examine the implications of conception at advanced
parental age on maternal outcomes, offspring health and the
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long-term child well-being with respect to upper age
restrictions i.e. 50 years for a woman and 55 years for a man
stipulated under the ART Act, 2021, and the Surrogacy
(Regulation) Act, 2021. There can be no second opinion about
the aspect of medical implications of advanced parental age, as
the Committee has pointed out the health risks associated with
a woman carrying pregnancy at an advanced maternal age,
(gestational and obstetric outcomes) also presenting health
risks to children born to couples of advanced parental age.
In addition to this, the said report also emphasises on the
psychological and caregiving implications of advanced
parental age and highlights the following as the major factors:
(i) Reduced caregiving capacity.
(ii) Increased risk of parental illness or early loss.
(iii) Higher parenting stress.
(iv) Risk to parental mental health and the parent-child
relationship.
(v) Risk to child development and long-term well-
being.
The report, therefore, highlights one critical aspect,
being when the child born to a couple at an advanced age
reaches adolescence, the parents may already be elderly,
leading to wider generational gaps, communication challenges
and reduced adaptability. Apart from this, it also relied upon
studies indicating higher risk of depressive symptoms and
severe mental illness in the offspring of older parents, raising
concerns regarding sustained psychological support and long-
term caregiving capacity.
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On careful consideration of the discussion and
examination of scientific literature, clinical evidence,
psychosocial research and international practices, the
Committee expressed it’s conclusions as follows:
“The upper-age limits of 50 years for women and 55 years for men,
prescribed under the ART (Regulation) Act, 2021, and the
Surrogacy (Regulation) Act, 2021, are reasonable and are founded
on well-established medical, genetic, epigenetic, psychosocial and
child-welfare considerations.”
44. It is noted by us that the justification for prescribing the
maximum age limit for the intending/commissioning couple
under the two statutes, however, was not based on any
scientific study at the relevant time when the Surrogacy Bill,
2019, was presented to Rajya Sabha and the report of the
Select Committee, deemed it appropriate to introduce the
definition of intending couple when it recommended the
deletion of Clause 2(p) from the Surrogacy Act, which defined
infertility. Similarly, while prescribing the age bracket for the
intending couple and each of the components in this couple on
the day of certification, the Report of the Committee merely
record a reasoning that, consequent to the deletion of Clause
2(p), on the ground that five-year period is too long for a
couple to have a child and the couples of Indian origin may also
be permitted to avail surrogacy, the Committee recommended
that Clauses 4(iii)(c)(I) and 4(iii)(c)(II) may be amalgamated
and amended.
However, we do not find any study being carried out
before prescribing the maximum age limit, as it may be
medically deleterious, or it may have to be looked at from the
perspective of the psychological and caregiving implications of
advanced parental age. The Report of the Expert Committee is
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quite recent and definitely did not form the basis of
prescription of the maximum age limit when the Surrogacy
Act was brought into force, after a threadbare examination of
the Surrogacy Bill, 2019, by the Select Committee presented to
the Rajya Sabha.
45. From the Report of the Expert Committee dated
21/01/2026, which is assertively invoked by the learned ASG,
one thing becomes clear, that the implications of conception at
advanced parental age on maternal outcomes, offspring health
and long-term child well-being, with respect to the upper-age
restrictions, are equally applicable to the ART Act, 2021, and
the Surrogacy (Regulation) Act, 2021. In fact, what we find is
that the medical implications of advanced parental age involve
health risks associated with a woman carrying a pregnancy at
an advanced maternal age, but in case of surrogacy, if the
surrogate mother is within the age limit that is prescribed
under the Act, i.e. between the age bracket of 25 and 35 years,
she does not face such risks though in case of ART technology,
the embryo or the gamete is transferred into the reproductive
system of a woman, which may also include the natural
mother and then definitely, it would pose risk associated with
carrying a pregnancy at an advanced maternal age. Since the
child is grown in the womb of a surrogate mother who is within
the prescribed age limit, and the embryo or gamete is
developed outside the body by handling the sperm or the
oocyte and is then transferred into the reproductive system of
the woman, the health risks contemplated under the heading
of medical implications may not be applicable in the case of
surrogacy.
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The psychological and caregiving implications of
advanced parental age, apply with equal force to a child born
out of surrogacy or a child born through the use of assisted
reproductive technology. What is highlighted by the Report of
the Expert Committee equally applies in both cases, if the
rationale in prescribing the age limit is the inhibition on part of
the parents, on account of their age, and which may impair
their active caregiving, emotional availability and parenting
capacity during the child’s formative years, and by considering
an important aspect that children require stable guardianship
for at least two decades, but we fail to understand as how this
factor can be made applicable only to a child born through
surrogacy to an intending couple, and not be applied to a child
born through the use of ART techniques to a commissioning
couple.
46. The Hon’ble Apex Court in Vijaya Kumari S. & Anr. Vs.
9
Union of India heard together with Arun Muthuvel (supra)
was dealing with a common legal question, as regards the
application of age restrictions on intending couples under
Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.
In the wake of the said provision being introduced in a
statute which came into force on 25/01/2022 requiring an
intending couple to possess an ‘eligibility certificate’ stating
that the couple is married and is between the age of 23 and 50
years in case of female and 26 to 55 years in case of male on
the date of certification, the common grievance of petitioners/
appellants was with regards to the upper age limit so fixed.
9 (2026) 2 SCC 96
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In the facts placed before the Court, dealing with two
couples who were unable to conceive a child naturally and had
engaged themselves in multiple unsuccessful attempts to
conceive, and had made embryos at a fertility centre but, on
the onset of the COVID-19 pandemic in 2020, they were
prevented from continuation of the process of surrogacy. In
the meantime, one of the constituents of the ‘intending couple’
crossed the prescribed age limit.
The contention advanced before the Apex Court was very
specific, that the intending couples had begun their surrogacy
procedure by freezing their embryos and when this process
was begun, it was completely within the ambit of the then-
prevailing law, which prescribed no upper-age limit, either for
a man or a woman to avail surrogacy but on account of the
statute coming into force and prescribing eligibility criteria,
one of them fell within the age cap and was prohibited from
continuing the process.
It was also urged that the fixation of an upper-age limit
lacks rational or justifiable basis, since the physical, emotional
and financial capability to raise a child are not merely a
function of age alone, and the restriction had no nexus with
the core concerns of the Act. i.e. protecting surrogate mothers
from exploitation and helping infertile parents have children.
In short, it was urged that the age restrictions under the
Act were contrary to the constitutional right afforded to a
woman to make unhindered decisions regarding her
reproductive choices. It is in this background facts where the
challenge was staked on the basis of the classification created
by prescribing age limits by testing the same under Article 14
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of the Constitution. A specific contention was also advanced
that the provisions of the statute not been made applicable
retrospectively when the procedure had already commenced
before the Act came into force.
47. It is in this background, it was canvassed that the
surrogacy procedure had commenced prior to the date
enforcement of the Act and while the couple was in the midst
of such a procedure, the Act brought in an embargo in the form
of an age limit, thereby making the couple ineligible to avail
themselves of surrogacy.
The Hon’ble Apex Court exhaustively dealt with the
history of the procedure of surrogacy as contemplated under
the Surrogacy Act and described the procedure of surrogacy,
wherein the surrogate mother becomes pregnant via embryo
transfer with a child of which she is not the biological mother.
It noted the distinction between altruistic surrogacy and
commercial surrogacy, and with reference to the 228th Report
of the Law Commission of India in 2009, which flagged the
problem of India becoming a ‘reproductive tourism
destination’, noted that multiple attempts were made to
introduce appropriate legislation through various Bills from
time to time but it is finally the 2019 Bill which paved the way
for the enactment of the Surrogacy (Regulation) Act, 2021.
The pertinent observation in the Law Report deserve a
reproduction though it was restricted to the parties before the
Court :-
“12. In recent jurisprudence, the Supreme Court has often
recognised that ‘reproductive autonomy’ is part of the constellation
of rights afforded to all people under Article 21 of the Constitution.
In 2009, a three-judge bench of this Court in Suchita Srivastava vs.
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Chandigarh Admn., (2009) 9 SCC 1 (“Suchita Srivastava”)
observed as follows:
“22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of `personal liberty' as
understood under Article 21 of the Constitution of India. It is
important to recognise that reproductive choices can be
exercised to procreate as well as to abstain from procreating.
The crucial consideration is that a woman's right to privacy,
dignity and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the exercise
of reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence
on use of contraceptive methods.” (underlining by us)
12.1 In K.S. Puttaswamy (Privacy-9J.) vs. Union of India,
(2017) 10 SCC 1, which a recognised a right to privacy within the
contours of Article 21, Dr. D.Y. Chandrachud, J. (as he then was),
observed as follows:
“248. Privacy has distinct connotations including (i) spatial
control; (ii) decisional autonomy; and (iii) informational
control. [ Bhairav Acharya, “The Four Parts of Privacy in
India”, Economic & Political Weekly (2015), Vol. 50 Issue 22, at
p. 32.] Spatial control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal choices
such as those governing reproduction as well as choices
expressed in public such as faith or modes of dress.”
(underlining by us)
12.2 Indeed, the freedom to make procreative choices as a facet of a
right to privacy was recognised even as far back as this Court’s
judgment in R. Rajagopal vs. State of T.N., (1994) 6 SCC 632, in
which it was observed that “any right to privacy must encompass
and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child-rearing”.
48. In P. Geetha v. The Kerala Livestock Development Board
10
Ltd. & Anr. the learned Single Judge of the Kerala High
Court, Mr. Justice Dama Seshadri Naidu, (as His Lordship then
was) dealing with the issue of motherhood and the right of a
mother to avail leave and the benefits under the Maternity
Benefit Act, 1961 in respect of a child born through the process
of surrogacy, but she being a genetic or biological mother in
his inimitable style noted thus :-
10 2015 SCC OnLine Ker 71
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“2. For Robert Brown all love begins and ends with motherhood, by
which a woman plays the God. Glorious it is as the gift of nature,
being both sacrosanct and sacrificial, though; now again, science
has forced us to alter our perspective of motherhood. It is no longer
one indivisible instinct of mother to bear and bring up a child. With
advancement of reproductive science, now, on occasions, the bearer
of the seed is a mere vessel, a nursery to sprout, and the sapling is
soon transported to some other soil to grow on. Now, it is Law's turn
to appreciate the dichotomy of divine duty, the split motherhood.”
Upon an in-depth discussion on the issue, a conclusion
was drawn that the petitioner did not physically bear the child.
However, she cannot be denied maternity benefits merely on
the ground that she obtained the baby through surrogacy. In
view of the dichotomy between maternity and motherhood, it
was held that the petitioner is entitled to all the benefits that
an employee could have after delivery, sans the leave involving
the health of the mother after delivery.
49. The Highest Court of this Country, the Supreme Court of
India, by this time has recognised the right of reproductive
autonomy as a facet of Article 21 of the Constitution and the
bodily integrity and personal autonomy is notably established.
11
In the decision of Justice K.S.Puttaswami Vs. Union of India
and Vijaya Kumari S. & Anr. (supra), it is recognised that the
personal liberty shall include the right to make intimate
decisions regarding reproduction, contraception, pregnancy
and family planning, without State coercion.
With reference to the Medical Termination of Pregnancy
Act, 1971, the choice of a woman whether to continue or
terminate the pregnancy, has received recognition from the
Constitutional Courts, and forcing an individual (including a
minor) to carry an unwanted pregnancy has been accepted to
be violation of a dignity, mental health and personal liberty.
11 (2017) 10 SCC 1
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The landmark judgments delivered in this regard have,
therefore, permitted adherence to a framework, which would
allow safe abortion access, by extending the rights to
unmarried woman equally as to married woman. Though, at
some point of time, adoption was accepted as an expression of
reproductive and decisional autonomy, with an objective of
linking the experience of motherhood to emotional bonding
rather than giving birth to a child biologically, with the
advancement of science and technology and introduction of
assisted reproductive technology, with all its grammatical
variations and cognate expressions finding place in the ART
Act, 2021, in our view, the jurisprudence that has evolved with
regards to the right of reproductive autonomy definitely
extend to the right to have a child by resorting to assisted
reproductive technology, which may allow a woman to carry
the embryo in her womb or hire a womb for development of the
embryo.
The right to make reproductive choices, being recognised
as a facet of personal dignity enshrined in Article 21 of the
Constitution definitely must operate with full force by keeping
in mind the progressive interpretation of laws, in alignment
with international norms and changing social dynamics, so
that it ultimately ensures every couple/an individual woman
to avail the reproductive rights to its fullest by addressing the
societal and systematic barriers in its way.
50. We also had an opportunity to consider the age limits
that are prescribed in various countries where the recourse is
taken to assisted reproductive technology and surrogacy, to
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find that there is a variance in the age limit of the surrogate
mother as well as the age prescribed for the couple, who intend
to avail the assistance of assisted reproductive technology.
Different parameters are applied over the globe depending
upon the type of surrogacy, as some countries permit
commercial surrogacy whereas some others prohibit it
completely.
The eligibility criteria for the ‘commissioning parents’
also differ, as it is left for the surrogacy clinics to consider the
eligibility. In absence of any specific research being carried out
that a woman, who had crossed the age limit of 50 and a man,
who had crossed the age limit of 55, and who are the ‘intending
couple’ cannot cater to the needs of the child, both emotional
and psychological, and on the other hand, the course adopted
by different High Courts in accepting the collective age of the
‘commissioning couple’ under the ART Act, we see no reason
why the said principle shall not be made applicable to the
Petitioners before us, as the husband (X-2) in the intending
couple is within the age bracket and together they can cater to
the child to be born through the process of surrogacy.
51. The Madras High Court, recently in Indumathi & Anr. Vs.
State of Tamil Nadu & Ors. (Writ Petition No.32103 of 2025),
was dealing with a rejection faced by the couple, who sought
permission to undergo surrogacy procedure and it was so
refused on the ground that the applicant/intending mother
had crossed the age limit of 50 years as on 24/10/2024.
Taking note of the peculiar facts that the petitioner was
married to a man and a female child was born out of the said
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relationship, but the marriage was subsequently dissolved by
divorce and she married the petitioner No.2 and though she
conceived, she suffered a miscarriage and based on medical
advice, she decided to undergo surrogacy by using a donor
oocyte and the second petitioner’s sperm. In accordance with
the treatment plan, the hospital collected and chose the second
petitioner's sperm in the year 2019. It is in these
circumstances, when they approached the concerned
authority, the impugned order was passed rejecting the
request.
With reference to the decision of the Apex Court in the
case of Vijaya Kumari S. & Anr. (supra), that the Act shall
apply prospectively and shall not apply to the cases where the
surrogacy procedure already commenced, the Court proceeded
to determine the issue of age bracket. By falling back on the
authoritative pronouncements of the Apex Court, the
impugned order was set aside and the petitioners’ request was
directed to be considered.
52. We have referred to the aforesaid decision, only to be
conscious of the fact that if the age restriction is sought to be
justified by the Union of India on the ground that after a
woman crossing the age of 50 and a man crossing the age of
55, they may not be compatible with the child both,
psychologically and emotionally as well as will not bear the
strength to care to him for atleast 20 years, which are the
formative years of his life, then in a case like Indumathi
(supra), by holding that if the procedure of surrogacy has
commenced prior to the Act coming into force, in that case the
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Court permitting a child to be born out of the surrogacy
procedure after 2024, when the mother has already crossed
the age of 50, we see no justification in denying the benefit to
the Petitioners before us.
53. We must clarify that we have not ruled upon the validity
of the provision prescribing the maximum age limit and
whenever such challenge is faced, all the relevant aspects,
including the study of impact of age in rearing up children at
advanced age will receive due consideration. As we find that
the Expert Committee Report, which is pressed into service,
comprise of such detailed and exhaustive study, but we find
that this Report was not the basis of introducing the age
bracket in the Surrogacy Act or the ART Act, but the research
is carried out in the year 2026 and it may provide guidance for
the legislature to suitably bring changes, if it so desire.
However, we do not pronounce upon the issue of its
validity, as we are conscious of the fact that the Court in
exercise of its jurisdiction, shall have limited or rather very
little scope to interfere with the legislative wisdom unless and
until it is established that its implementation results into
arbitrariness and which can be tested on the well settled
touchstones of testing arbitrariness.
However, in the present case, we found ourselves guided
by the reasoning evolved by various High Courts in case of the
age limit of ‘commissioning couple’ under the ART Act, where
one of them has crossed the maximum age limit, but the other
did not. A woman, who is otherwise entitled to avail the
benefit of assisted reproductive technology when put to
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hardship only because she approaches the Authority as a part
of ‘commissioning couple’, was held, cannot be discriminatory
and this equally applies to a situation vice versa.
Since it should always be the endeavour of a Court to
adopt a purposive interpretation and ensure that the object
behind a legislation is achieved, by adopting an interpretation,
which assists in attaining the object and as far as the
Surrogacy Act is concerned, it is a regulatory statute
regulating the practice and process of surrogacy and aimed at
prohibiting potential exploitation of surrogate mothers and to
protect the rights of the children born through surrogacy.
54. X-1 and X-2 before us are denied the Eligibility
Certificate, as one of them has crossed the age bracket and we
express our agreement with the learned Amicus, Mr.Jagtiani,
who has brought before us another perspective of purposively
interpreting Section 4(iii)(c)(I), and particularly when this is
so applied to a ‘commissioning couple’ under the ART Act.
Hence, we deem it appropriate to assist the Petitioners,
the ‘intending couple’ before us, by issuing the following
directions :-
(1) We quash and set aside the order dated 14/07/2026
passed by the Appropriate Authority under the
Surrogacy (Regulation) Act, 2021, Nashik Municipal
Corporation (Respondent No.5) by which the
Petitioners’ application for issuance of an Eligibility
Certificate under Section 4(iii)(c) of the Surrogacy
(Regulation) Act, 2021 has been rejected on the
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ground that Petitioner No.1 has crossed the upper age
limit as set out under Section 4(iii)(c)(I) of the Act.
(2) By adopting purposive interpretation, we issue writ of
mandamus to the Appropriate Authority under the
Surrogacy (Regulation) Act, 2021, Nashik Municipal
Corporation (Respondent No.5) to issue an Eligibility
Certificate in favour of the Petitioners, in the wake of
the reasoning indicated by us in our Judgment and
declare that the Petitioners are eligible for undergoing
the process of surrogacy and the factum that one of
them i.e. X-1 has crossed the age of 50, shall not pose
an embargo in they being subjected to the procedure of
surrogacy and if required, the ART procedure.
(3) We also issue writ of mandamus to District Medical
Board, Nashik (Respondent No.6) to issue the
Certificate of Medical Indication, if the Petitioners
otherwise satisfy the medical requirements prescribed
under the Surrogacy (Regulation) Act, 2021 and the
Surrogacy (Regulation) Rules, 2022.
The Petition is made absolute in the aforesaid terms.
(ASHISH S. CHAVAN, J.) (BHARATI DANGRE, J.)
55. At this stage, Mr.Mehta, the learned counsel
representing the Union of India, requests for stay to the
Judgment, as it would like to test the decision delivered by us
before the Hon’ble Apex Court.
In our view, we have clarified that we have purposively
interpreted the relevant provisions in the Surrogacy
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(Regulation) Act, 2021 to be read with the provisions of the
Assisted Reproductive Technology (Regulation) Act, 2021, and
conferred the right on the Petitioners to avail the benefit of the
procedure of surrogacy under the Surrogacy (Regulation) Act,
2021 and we have not determined the validity of the provision
prescribing the age bracket for the ‘intending couple’.
The request is, therefore, rejected.
(ASHISH S. CHAVAN, J.) (BHARATI DANGRE, J.)
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