The Bombay High Court has permitted a married couple, including a 54-year-old woman, to undergo surrogacy despite her crossing the statutory upper age limit of 50 years. The Court held that an intending couple cannot automatically be denied access to surrogacy merely because one spouse has crossed the prescribed age limit, particularly when the other spouse remains within the eligible age bracket.
A Division Bench of Justice Bharati Dangre and Justice Ashish S. Chavan granted relief to the couple by adopting a purposive interpretation of the Surrogacy (Regulation) Act, 2021, read with the Assisted Reproductive Technology (Regulation) Act, 2021.
Background
The petition was filed by a married couple, identified as X-1 and X-2, aged 54 and 53 years respectively. They had made prolonged efforts to conceive naturally and had undergone multiple cycles of In Vitro Fertilisation (IVF) at recognised fertility centres. However, the treatments did not result in a successful pregnancy.
Following medical consultations, specialists advised them to consider gestational surrogacy as an option to fulfil their desire to become parents.
The couple approached the Appropriate Authority under the Surrogacy Act, seeking an Eligibility Certificate. Their application was rejected on July 14, 2026, solely because the woman had crossed the upper age limit of 50 years prescribed under Section 4(iii)(c)(I) of the Act.
Challenging the rejection, the couple argued that the decision violated their fundamental rights under Articles 14 and 21 of the Constitution, particularly their right to reproductive autonomy.
The Union Government opposed the petition, relying on statutory age restrictions and an Expert Committee report concerning the medical, psychological and caregiving implications of advanced parental age. It maintained that both members of an intending couple must independently satisfy the prescribed age criteria.
The Bench examined the statutory framework governing surrogacy alongside the ART Act and considered several High Court decisions dealing with age restrictions applicable to commissioning couples seeking assisted reproductive technology services.
The Court recognised that reproductive autonomy forms part of personal liberty under Article 21 and that access to assisted reproductive technology and surrogacy falls within the broader framework of reproductive choices.
The Bench observed:
"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 Court also examined the government's reliance on the Expert Committee report concerning advanced parental age. It noted that although the report highlighted medical and caregiving concerns, it had been prepared in 2026 and did not form the basis of the original age restrictions when the Surrogacy Act was enacted.
Importantly, the Bench noted that the psychological and caregiving considerations associated with advanced parental age apply equally to children born through surrogacy and those born through assisted reproductive technology. It found that the husband in the present case remained within the prescribed age bracket and that the reasoning adopted by various High Courts concerning commissioning couples under the ART Act could guide the interpretation of the Surrogacy Act.
The Court clarified that it was not deciding the constitutional validity of the statutory age restriction.
It observed:
"We must clarify that we have not ruled upon the validity of the provision prescribing the maximum age limit and whenever such challenge is faced, all the relevant aspects, including the study of impact of age in rearing up children at advanced age will receive due consideration. As we find that the Expert Committee Report, which is pressed into service, comprise of such detailed and exhaustive study, but we find that this Report was not the basis of introducing the age bracket in the Surrogacy Act or the ART Act, but the research is carried out in the year 2026 and it may provide guidance for the legislature to suitably bring changes, if it so desire."
Allowing the petition, the Bombay High Court quashed the July 14, 2026 rejection order passed by the Appropriate Authority, Nashik Municipal Corporation.
By adopting a purposive interpretation of Section 4(iii)(c)(I), the Court directed the authority to issue an Eligibility Certificate to the couple and declared that the woman's having crossed 50 years of age would not prevent them from undergoing surrogacy or, if required, the ART procedure.
The Court further directed the District Medical Board, Nashik, to issue the Certificate of Medical Indication, provided the couple otherwise satisfied the medical requirements under the Act and the Surrogacy Rules, 2022.
The operative direction stated:
"By adopting purposive interpretation, we issue writ of mandamus to the Appropriate Authority under the Surrogacy (Regulation) Act, 2021, Nashik Municipal Corporation (Respondent No.5) to issue an Eligibility Certificate in favour of the Petitioners, in the wake of the reasoning indicated by us in our Judgment and declare that the Petitioners are eligible for undergoing the process of surrogacy and the factum that one of them i.e. X-1 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 Bench also rejected the Union Government's request to stay the judgment pending an appeal before the Supreme Court.
Case Details
Case Title: X-1 & Anr. v. Union of India & Ors.
Case Number: Writ Petition No. 11143 of 2026
Judges: Justice Bharati Dangre and Justice Ashish S. Chavan
Decision Date: November 4, 2026
