Woman Cannot Be Denied Surrogacy Solely On Grounds Of Being 54 Years Old, Rules High Court

Mumbai: In a significant ruling upholding reproductive rights, the Bombay High Court has directed the Nashik Municipal Corporation (NMC) to issue an eligibility certificate to a middle-aged couple in their 50s for a surrogacy procedure.

A bench headed by Justice Bharati Dangre quashed a July 14 order by the appropriate authority of the NMC that had rejected the couple's application. The civic body had refused the certificate solely because the wife, aged 54, had crossed the upper age limit of 50 years mandated under the Surrogacy (Regulation) Act, 2021, while her husband was 53.

Quoting writer Lin Yutang during the proceedings, the bench emphasised: "Of all the Rights of Women, the greatest is to be a Mother."

Couple Challenges Age Restrictions

The couple had approached the High Court after years of unsuccessful natural conception attempts and multiple failed In Vitro Fertilisation (IVF) cycles. Their counsel argued that imposing a rigid age block violated their fundamental right to personal liberty and reproductive autonomy under Article 21 of the Constitution.

The Union of India defended the age restrictions, pointing to a parliamentary committee report and an expert committee finding that advanced parental age can pose long-term caregiving and psychological challenges for the child.

Court Adopts Purposive Interpretation

However, drawing parallels with the Assisted Reproductive Technology (ART) Act—where courts have ruled that age restrictions apply individually rather than serving as an absolute block on a couple as a composite unit if one partner remains eligible—the High Court adopted a purposive interpretation of the law.

The court noted that since the husband was 53 (below the male upper limit of 55) and the couple met all other medical and legal requirements, the wife exceeding 50 should not bar them from pursuing parenthood.

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Authorities Directed To Grant Clearance

Directing the authorities to grant the clearance, the bench stated: "The factum that one of them... has crossed the age of 50, shall not pose an embargo in they being subjected to the procedure of surrogacy and if required, the ART procedure."

The court further instructed the Nashik District Medical Board to issue a medical indication certificate if the petitioners satisfy remaining health requirements.

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