Wife 54, Husband 53: Bombay HC Orders Surrogacy Eligibility, as Husband Meets Age Limit despite Wife’s Age

The petitioners, a legally married couple aged 54 and 53, sought gestational surrogacy after prolonged infertility and unsuccessful IVF treatment.

Their application for an eligibility certificate under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021 was rejected because the wife had exceeded the statutory upper age limit of 50 years.

The husband remained below his prescribed limit of 55 years.

The petitioners challenged the rejection and sought reconsideration of their eligibility.

Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 requires an intending couple to be married and prescribes age ranges of 23–50 years for the female and 26–55 years for the male on the date of certification.

The Court read that provision with Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, which separately prescribes age limits for women and men receiving ART services.

Treating the two statutes as allied and cognate enactments forming a connected statutory framework, the Court applied the approach taken by High Courts under Section 21(g): where one member of a couple is within the prescribed age range, the other member’s age-based ineligibility need not bar the couple from accessing the procedure.

The Court also relied on the recognition of reproductive autonomy as an aspect of personal liberty under Article 21, including the principles in Suchita Srivastava v. Chandigarh Administration and K.S. Puttaswamy v. Union of India.

It expressly did not determine the constitutional validity of the age limits.

The Court found that the petitioners’ eligibility was disputed only because the wife was over 50; their marital status, medical history, bona fides, and other statutory requirements were not contested.

Because surrogacy necessarily involves ART and the two Acts operate as a connected framework, the Court considered the reasoning of cases interpreting the ART Act’s individually framed age limits relevant to the Surrogacy Act.

It concluded that denying the petitioners access to surrogacy solely because one spouse exceeded the age limit would be inconsistent with that approach.

The husband was within the statutory age range, and the Court therefore adopted a purposive interpretation allowing the couple to proceed, without invalidating the statutory age criteria.

It held that the wife’s having crossed 50 years would not, by itself, bar the couple from undergoing surrogacy or, if required, ART.

The District Medical Board was directed to issue a certificate of medical indication if the petitioners otherwise satisfied the prescribed medical requirements.

The Court declined to stay its judgment.