Women Ineligible For Surrogacy Upon Completing 50 Years of Age: Kerala High Court

The Kerala High Court has clarified that a woman becomes ineligible for surrogacy on the day she completes 50 years of age, in line with the age restrictions imposed under the Surrogacy (Regulation) Act, 2021.

The Single Bench of Justice C.S. Dias dismissed a petition challenging the interpretation of age limits under the Act.

"In the light of the interpretations under Section 4 of the Indian Majority Act, a statute that precisely deals with the computation of age, there is no doubt that a female who attains the age of 23 would become eligible to have a surrogate child and becomes ineligible on the preceding day her 50th birthday anniversary. The terms ‘between” and “to” used in Section 4 (c) (I) of the Act reflect a restriction indicating that a female can have a surrogate child only after attaining the age of 23 years and before completing the age of 50 years, with a similar restriction for males aged between 26 to 55," the Bench held. 

Court’s Interpretation of Age Limits

The case revolved around Section 4(c)(i) of the Act, which mandates that intending couples must be between 23 to 50 years (for females) and 26 to 55 years (for males) on the date of certification to be eligible for surrogacy. The petitioners—a 46-year-old wife and her 52-year-old husband—had sought an eligibility certificate for surrogacy after failed attempts using Assisted Reproductive Technology.

However, the Kerala State Assisted Reproductive Technology and Surrogacy Board deemed the wife ineligible, citing her birth year as 1974, meaning she had already turned 50. The couple argued that she should remain eligible until the day before her 51st birthday, relying on Section 9 of the General Clauses Act.

Rejecting this interpretation, the Court held that the maximum age limit cannot be extended until the preceding day of the 51st birthday. It emphasized that the legislature set these restrictions considering the biological age for natural conception and that courts cannot alter statutory age limits using extraordinary jurisdiction.

Legal Precedents Cited

The Court relied on previous decisions, including Jaison V. George v. State of Kerala (2019) and Supreme Court rulings, which established that a person attains a specified age on the day before their birthday anniversary. It also distinguished the General Clauses Act, stating that it pertains to time computation rather than age determination.

Judgment and Conclusion

Dismissing the couple’s petition, the Court upheld the Board’s decision, ruling that the wife was rightly declared ineligible after turning 50. The Court reaffirmed that the age limits prescribed in the Surrogacy (Regulation) Act, 2021, must be strictly adhered to and cannot be judicially extended.

"...this Court is of the view that the 3rd respondent has rightly concluded that the 1st petitioner is ineligible for an eligibility certificate under Section 4 (c) of the Act since she has attained the age of 50 years. Consequently, the petitioners' prayer to declare that the 1st petitioner is eligible for an eligibility certificate is rejected. Accordingly, the writ petition is dismissed," the Court ordered. 

Cause Title: Rajitha P.V. v. Union of India [Neutral Citation No. 2025:KER:11881]

Appearance:-

Petitioner: Advocates Adithya Rajeev, S.Parvathi, Safa Navas

Respondent: Advocate R V Sreejith, Deputy Solicitor General of India (Dy. SG) T C Krishna, Government Pleader Vidya Kuriakose

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