Delhi HC Rejects Surrogacy Bid: Woman Turned 50 During Infertility Treatment, Before Surrogacy Process Began

In brief

The question

1. Whether the petitioners were entitled to exemption from the statutory age limit where Petitioner No. 1 had crossed 50 before commencing the surrogacy procedure.

The court held

The Court held that the petitioners had not established grounds for relief under Article 226 and dismissed the petition.

It also directed

The pending application was also disposed of.

01Facts

The petitioners sought exemption from the statutory age limit and permission to proceed with gestational surrogacy, along with the necessary eligibility certificate and approvals.

Petitioner No. 1 first consulted the treating clinic on 6 February 2025, aged approximately 49 years and 7 months; gestational surrogacy with a donor oocyte was advised on 10 February 2025.

pp. 2–3

She was undergoing infertility treatment when she crossed the age limit of 50 years under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.

pp. 2–3

The petition was filed on 2 March 2026.

The petitioners relied on *Tapas Kumar Mallick & Anr. v. Union of India & Anr.* and argued that they had begun the process before the age limit was crossed.

pp. 2–3

02Issues

i.1. Whether the petitioners were entitled to exemption from the statutory age limit where Petitioner No. 1 had crossed 50 before commencing the surrogacy procedure.

pp. 2–4

ii.2. Whether the petitioners could obtain discretionary relief under Article 226 despite the delay in approaching the Court and the absence of a challenge to the Act’s validity.

pp. 4–5

03Law Applied

Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 prescribes an upper age limit of 50 years for a woman to be eligible for surrogacy.

pp. 2–3

Under Article 226, the Court may grant equitable and discretionary relief, but a petitioner’s lack of promptitude may disentitle them to such relief.

p. 4

In *Tapas Kumar Mallick & Anr. v. Union of India & Anr.*, the Court permitted the petitioners to proceed because they had initiated the surrogacy process before the Act came into force.

pp. 2–3

The Court also relied on *State of Jharkhand v. Govind Singh*, (2005) 10 SCC 437, for the principle that courts interpret the law but cannot legislate or alter it.

p. 5

Provisions in the judgment · 1 · Linked ones open on LawLens

Surrogacy (Regulation) Act, 2021 Section 4

04Reasoning

The Court found that Petitioner No. 1’s first consultation occurred after the Act and its age limit had taken effect, and that she had not obtained the requisite permissions or commenced the surrogacy procedure before crossing 50; she was undergoing infertility treatment only.

pp. 3–4

The facts therefore differed from *Tapas Kumar Mallick*, where the process had begun before the Act commenced.

p. 4

The petitioners also knew of the impending age limit at their first consultation but did not approach the Court until March 2026, without satisfactorily explaining the delay, which weighed against discretionary relief under Article 226.

p. 4

As the Act’s vires had not been challenged, the Court could not grant an exemption by modifying the statutory scheme.

p. 5