Case at a Glance
A married couple, aged 54 and 53, turned to gestational surrogacy after prolonged infertility and failed IVF cycles. The Appropriate Authority at Nashik Municipal Corporation refused them an Eligibility Certificate only because one spouse had crossed the upper age limit in Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. Reading the Surrogacy Act together with the Assisted Reproductive Technology (Regulation) Act, 2021 as allied statutes, the Bombay High Court adopted the ‘collective age’ approach taken by several High Courts, quashed the rejection, and directed issuance of the Eligibility Certificate. It expressly did not decide the validity of the age bracket, and refused the Union’s request to stay its judgment.
The petitioners, identified as X-1 (aged 54) and X-2 (aged 53), are a married ‘intending couple’. After years of infertility and unsuccessful IVF cycles, a specialist at Nashik recommended gestational surrogacy on 27 June 2026. On 14 July 2026 the Appropriate Authority (Nashik Municipal Corporation) refused them an Eligibility Certificate solely because X-1 was beyond the age limit. Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 requires the intending couple to be married and between 23 and 50 years (woman) and 26 and 55 years (man) on the date of certification.
The couple asked the Court to read the provision purposively with Rule 14 of the 2022 Rules, or alternatively to declare the inflexible age bar unconstitutional to that limited extent, and to direct the District Medical Board to examine their case. The Union of India defended the age limit as a legislative choice backed by a Parliamentary Select Committee, the National Board and an Expert Committee report on advanced parental age, and pointed out that related challenges are pending before the Supreme Court in Arun Muthuvel v. Union of India. Senior Advocate Sharan Jagtiani, appointed amicus curiae, suggested reading the couple as a unit so that one spouse’s compliance suffices, or reading the bar down for exceptional medical cases.
The Key Question Before the Court
When one spouse is beyond the upper age limit but the other is within it, must the Appropriate Authority refuse an Eligibility Certificate under Section 4(iii)(c)(I) of the Surrogacy Act — or can the couple’s age be considered collectively?
Allied statutes, reproductive autonomy and the ‘collective age’ approach
Justice Bharati Dangre, writing for the Bench, treated the Surrogacy Act and the ART Act as allied statutes that must be read together. The Court drew on Suchita Srivastava v. Chandigarh Administration, (2009) 08 SC CK 0003 and K.S. Puttaswamy v. Union of India to hold that reproductive autonomy falls within Article 21, and relied on the Supreme Court’s decision in Vijaya Kumari S. v. Union of India, (2025) 10 SC CK 1091, which held that the surrogacy law operates prospectively and treated intimate reproductive decisions as part of personal liberty. It noted that several High Courts, dealing with the ART Act, have assessed the age of the couple collectively rather than partner by partner, and observed that no research showed couples beyond the age limits cannot meet a child’s needs.
The Court found that the Expert Committee’s psychological and caregiving concerns apply equally to children born through ART, while the medical risks may not operate the same way in surrogacy, and that no study supported the age bracket when the Act was framed; a 2026 expert study on parental age might guide the legislature but was not the basis of the bracket. Reading Section 4(iii)(c)(I) purposively — in light of the Act’s aim of preventing exploitation of surrogate mothers and protecting children — and since one spouse was within the age bracket, the Court held the couple eligible. It made clear that it was interpreting the provision, not striking it down: “we have not determined the validity of the provision prescribing the age bracket.”
What the Court Actually Held
- The Surrogacy (Regulation) Act, 2021 and the ART (Regulation) Act, 2021 are allied statutes, and Section 4(iii)(c)(I) must be read purposively in that light.
- The collective age of the intending couple can be considered; one partner being above 50 is not a bar to the surrogacy procedure (or, if required, the ART procedure) where the other is within the bracket.
- The order of 14 July 2026 refusing the Eligibility Certificate was quashed; the Appropriate Authority was directed to issue the certificate, and the District Medical Board, Nashik, to issue a Certificate of Medical Indication if medical requirements are met.
- The validity of the age bracket was not decided, and the Union’s request for a stay to challenge the judgment was refused.
Why This Judgment Matters
- It offers relief to older infertile couples whose applications are rejected only because one spouse has crossed the age limit.
- It aligns surrogacy with the ‘collective age’ approach several High Courts have taken under the ART Act.
- It shows how courts can grant relief through purposive interpretation while leaving the constitutional challenge to the Supreme Court.
What Should Advocates Take Away From the Judgment?
For Intending Couples
- If an Appropriate Authority rejects your application only because one spouse is over the limit, this judgment supports asking for reconsideration on a collective-age basis.
- The Eligibility Certificate and the Certificate of Medical Indication are separate; keep the medical process before the District Medical Board moving.
- The Supreme Court is still examining the age limits, so the law may change.
For Counsel
- Plead the Surrogacy Act and the ART Act together as allied statutes, and cite the High Court decisions adopting the collective-age approach.
- Frame relief primarily as purposive interpretation, with constitutional challenge as an alternative, as was done here.
- Note that the judgment turned on one spouse being within the bracket; it does not help where both are over the limits.
Key Takeaways
- The couple’s age can be read collectively under Section 4(iii)(c)(I) of the Surrogacy Act.
- One spouse being over 50 did not bar surrogacy where the other was within the bracket.
- The Nashik rejection was quashed and the Eligibility Certificate ordered.
- The age bracket’s validity was left undecided; a stay was refused.
Frequently Asked Questions
What are the age limits for surrogacy in India?
Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 requires the intending couple to be married, with the woman aged 23 to 50 and the man 26 to 55 on the date of certification.
Did the Bombay High Court strike down the surrogacy age limit?
No. The Court expressly said it had not determined the validity of the age bracket. It only read the provision purposively and considered the couple’s age collectively.
Does this help a couple where both spouses are over the limit?
The judgment applied the collective-age approach because one spouse was within the age bracket. It does not address a case where both are over the limits.
Conclusion
For a 54-year-old and a 53-year-old who had exhausted other options, the Bombay High Court refused to let one birthday decide their chance at parenthood. By reading the Surrogacy Act alongside the ART Act and treating the couple as a unit, it directed the authorities to process their case, while leaving the larger constitutional question to the Supreme Court.
Practical takeaway: Couples refused an Eligibility Certificate only because one spouse is over the age limit can rely on this judgment to seek a collective assessment of age, while pursuing the medical indication certificate in parallel.
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