In a significant judgment that could bring relief to many couples facing similar hurdles, the Delhi High Court on October 27, 2025, allowed a 57-year-old husband and his 42-year-old wife to proceed with surrogacy, even though they exceeded the legal age cap set under the Surrogacy (Regulation) Act, 2021.
Justice Sachin Datta ruled that since the couple had initiated their surrogacy process before the law came into force, the age restrictions could not be applied retrospectively.
Background
The petitioners, Tapas Kumar Mallick and his wife, approached the Delhi High Court after being denied eligibility due to the husband's age. Under Section 4(iii)(v)(c)(I) of the Act, a male intending parent must be between 26 and 55 years, and the female between 23 and 50 years at the time of certification.
The couple had undergone several failed attempts at conception, including multiple IVF cycles. On medical advice, they decided to pursue surrogacy and began the process on January 6, 2021, when their embryos were retrieved and cryo-preserved - notably before the law took effect on January 25, 2022.
Their counsel, Mr. S.M. Tripathi, argued that applying the age limit to them now would be both unfair and unconstitutional.
"This restriction, when applied retrospectively, effectively punishes couples who acted in good faith before the Act existed," he told the court.
Court's Observations
Justice Datta closely examined the facts and leaned on precedents, particularly Mrs. D & Anr. v. Union of India (2023) and the Supreme Court’s ruling in Vijaya Kumari S. & Another v. Union of India (2024). Both judgments emphasized that once embryos are created and frozen, the surrogacy process is deemed to have commenced.
Quoting from the Supreme Court decision, the bench observed,
"Freezing of embryos for the purpose of surrogacy is a stage at which one can say that the intending couple has manifested their intention to pursue surrogacy."
In essence, the Court clarified that such cases cannot be treated under the new age limits because the process had already begun when no such restriction existed. Justice Datta agreed with this reasoning, noting that the couple’s right to reproductive autonomy forms part of their fundamental right under Article 21 of the Constitution, which guarantees the right to life and personal liberty.
"The rule against retrospective operation of statutes applies here to preserve the rights of intending couples," the judge observed, stressing that applying the new law retroactively would unjustly strip the petitioners of their chance to become parents.
Decision
In its final order, the Delhi High Court held that Section 4(iii)(v)(c)(I) of the Surrogacy (Regulation) Act, 2021 would not apply to the petitioners since their surrogacy procedure had already commenced before the Act's enforcement. The Court permitted the couple to move forward with their surrogacy arrangement, exempting them from the statutory age restrictions.
However, the bench made it clear that the couple must still comply with all other applicable provisions of the Act and the Surrogacy (Regulation) Rules, 2022.
With that, the writ petition was disposed of, marking yet another instance where the judiciary stepped in to balance legal formalities with human realities.
Case Title: Tapas Kumar Mallick & Anr. v. Union of India & Anr.
Case Number: W.P.(C) 3953/2025
Advocates for Petitioners:
Mr. S.M. Tripathi and Mr. Divyanshu Priyam, Advocates
Advocates for Respondents (Union of India):
Ms. Arunima Dwivedi, Central Government Standing Counsel (CGSC)
with Mr. Akash Pathak (GP), Ms. Himanshi Singh, Ms. Monalisha Pradhan, and Ms. Priya Khurana, Advocates
