Surrogacy age limits are constitutionally valid and assessed on the date of eligibility certification.

The appellants, a married couple, underwent assisted reproductive treatment and had embryos created and cryopreserved on 30 August 2022.

The treatment and embryo preservation occurred after the Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022.

The District Medical Officer issued a certificate of medical indication for surrogacy on 21 June 2023, and the Magistrate subsequently passed an order concerning the parentage and custody of the child proposed to be born through surrogacy on 3 May 2025.

When the appellants applied for an eligibility certificate before the Kerala State Assisted Reproductive Technology and Surrogacy Board on 27 May 2025, the application was rejected because the second appellant had crossed the statutory upper age limit of 55 years for an intending male partner under Section 4(iii)(c)(I) of the Act.

Their writ petition, challenging the constitutional validity and application of the age restriction, was dismissed by the learned Single Judge on 1 June 2026, principally relying on Sajithanand S. @ Sajitha Manoharan v. Union of India.

The appellants filed the present intra-court appeal.

1. Whether the appellants’ surrogacy procedure commenced before the commencement of the Surrogacy (Regulation) Act, 2021, so as to attract the exception recognised in Vijaya Kumari S. v. Union of India.

2. Whether Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, prescribing that the intending couple must satisfy the age requirements on the date of certification, is constitutionally invalid as violative of Articles 14 and 21 of the Constitution.

3. Whether the appellants could claim eligibility on the basis that the embryos were created and cryopreserved when both appellants were within the prescribed age limits, notwithstanding the second appellant’s subsequent crossing of the age limit.

Section 4 of the Surrogacy (Regulation) Act, 2021 prohibits conducting or initiating surrogacy procedures unless the purposes and statutory conditions under Sections 4(ii) and 4(iii) are satisfied, including possession of the requisite certificates.

Section 4(iii)(c)(I) requires an intending couple to be married and, on the day of certification, to be between 23 and 50 years of age in the case of the female partner and between 26 and 55 years in the case of the male partner.

In Sajithanand S. @ Sajitha Manoharan v. Union of India, the Kerala High Court held that these age restrictions are constitutionally valid, medically and ethically justified, and proportionate to the statutory objectives.

In Vijaya Kumari S. v. Union of India, the Supreme Court held that the age restriction cannot operate retrospectively against couples who had commenced surrogacy before 25 January 2022, had reached the stage of embryo creation and cryopreservation, and were ready for embryo transfer.

The Court also applied the principles of reasonable classification under Article 14, purposive interpretation, and the rule against retrospective operation of statutes.

The Court held that the appellants did not fall within the protective principle laid down in Vijaya Kumari. Their embryos were created and cryopreserved on 30 August 2022, after the Surrogacy Act came into force on 25 January 2022; therefore, the surrogacy procedure had not commenced before the Act.

The Court further found that the appellants had initiated the surrogacy process without first obtaining the eligibility certificate required under Section 4(iii)(c)(I), and that the age of the intending couple had to be assessed on the date of certification.

Since conducting or initiating surrogacy without satisfying the statutory certification requirements could attract penal consequences under Sections 39 and 41, the appellants could not rely on the prior creation of embryos to claim exemption.

On the constitutional challenge, the Court followed Sajithanand and held that the age classification bears a reasonable relationship to the Act’s objectives of preventing exploitation, regulating reproductive technology, protecting maternal and child welfare, and ensuring safe and ethical surrogacy.

The classification was therefore neither arbitrary nor disproportionate under Articles 14 and 21.

It held that the appellants’ surrogacy procedure commenced after the Surrogacy Act came into force and that the statutory age restriction under Section 4(iii)(c)(I) applied to them.

The constitutional challenge to the provision was rejected, and the appellants were not entitled to use their cryopreserved embryos merely because those embryos had been created when they were within the prescribed age limits.

The writ appeal was accordingly dismissed, with no order as to costs.