The Bombay High Court ruled that a married couple cannot be denied surrogacy solely because the wife exceeds the statutory upper age limit of 50 years, provided her husband remains within the permissible age bracket.
A Bench of Justices Bharati Dangre and Ashish Chavan quashed an order of the Nashik Municipal Corporation that rejected the application of a 54-year-old woman and her 53-year-old husband for an eligibility certificate under the Surrogacy (Regulation) Act, 2021.
The couple had exhausted extensive in vitro fertilization (IVF) cycles before specialists recommended gestational surrogacy.
The civic authority had rejected their plea citing Section 4(iii)(c)(I) of the Act, which restricts surrogacy to couples where the woman is aged between 23 and 50 and the man between 26 and 55. The Union government defended the cap, relying on an expert committee report that highlighted reduced caregiving capacities and health risks in advanced parental age.
The Court observed that an intending couple acts as a composite unit and that the age-related disqualification of one spouse cannot penalise the other.
“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,” the order reads.
The Bench reasoned that just because the wife has crossed the age of 50, it should not pose an embargo for the couple being subjected to the procedure of surrogacy.
The Court directed the Nashik authorities to grant the eligibility certificate and ordered the district medical board to examine the couple.
Advocates Utkarsh Pondkule, Jagdish Deore and Akshay Desai appeared for the couple.
Additional Solicitor General Anil C Singh with advocates Savita Ganoo, Krishnakant Deshmukh and Aadarsh Vyas appeared for the Union.
Senior Advocate Sharan Jagtiani was amicus curiae alongwith advocates Surabhi Agrawal, Siddharth Joshi and Avanti Divan.
Additional government pleaders Ketan Joshi and AA Alaspurkar appeared for the State.
[Read judgment]