Eligibility Certificate U/S 4 Surrogacy Act Must Precede Surrogacy Procedure; Age On Certification Date Is Crucial: Kerala High Court
|The Bench upheld denial of surrogacy certificate to couple whose embryos were frozen after Act came into force, distinguished Supreme Court's judgment on retrospectivity.
The Kerala High Court has held that an intending couple must obtain the eligibility certificate under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 before commencing any surrogacy procedure, and that initiating the process, including the freezing of embryos, without first securing such certification cannot entitle the couple to bypass the Act's age criteria. The Court held that where the surrogacy procedure commences after the Act came into force, the age eligibility of the intending couple must be assessed as on the date of certification, and not as on the date the embryos were created and cryopreserved.
The Court distinguished the Supreme Court's judgment in Vijaya Kumari S. v. Union of India 2025 KHC 6856, which held that the age bar under the Surrogacy Act could not operate retrospectively against couples who had already crystallised their intention to undergo surrogacy through embryo creation and freezing before the Act's commencement.
The Bench also rejected a constitutional challenge to the age-limit provision itself, holding that the age restriction bears a reasonable nexus to the statute's objective of ensuring safe, ethical and non-exploitative surrogacy, and therefore does not offend Articles 14 or 21 of the Constitution of India.
A Division Bench comprising Justice K. Natarajan and Justice Johnson John observed, “…the appellants have not obtained the eligibility certificate under Section 4(iii)(c)(I) of the Surrogacy Act before the commencement of the surrogacy procedure and for the purpose of eligibility certificate, the age as on the day of certification is crucial…”.
“…It is pertinent to note that Section 4 of the Surrogacy Act prohibits the use of any place including a surrogacy clinic for conducting surrogacy or surrogacy procedures except for the purposes specified in sub clause (ii) and after satisfying all the conditions specified in sub clause (iii). Sections 39 and 41 prescribes the punishments for contravention of provisions of the Act and therefore, initiation of the proceedings to undergo surrogacy after the commencement of the Act without certification which attract penal consequences cannot be accepted as a valid ground for claiming exemption”, the Bench said further.
Senior Advocate S. Sanal Kumar appeared for the appellant and O.M. Shalina, Deputy Solicitor General of India appeared for the respondent.
The appellants, a married couple, had undergone assisted reproductive treatment over several years, including embryo transfers in 2018 and 2019. Following further IVF and gamete retrieval procedures in 2021, their fertilised embryos were cryopreserved on August 30, 2022, after the Surrogacy Act came into force on January 25, 2022.
A certificate of medical indication was obtained in June 2023, and a Magistrate's order concerning parentage and custody of the child to be born through surrogacy was secured in May 2025. However, when the appellants approached the Kerala State Assisted Reproductive Technology and Surrogacy Board for an eligibility certificate under Section 4(iii)(c)(I), the application was rejected on the ground that the second appellant, the husband, had crossed the prescribed upper age limit of 55 years.
The appellants' writ petition challenging the rejection, and separately assailing the constitutional validity of the age-limit provision, was dismissed by a Single Judge on June 01, 2026, who found the issue squarely covered by the Division Bench ruling in Sajithanand S. and another v. Union of India and Others 2026(3) KHC 549. The appellants preferred the present intra-court appeal.
The Bench noted that "the averments in paragraph 3 of the writ petition clearly shows that the appellants initiated the proceedings to undergo surrogacy and the fertilized embryos were kept frozen on August 30, 2022, which is after the commencement of the Act.
On the constitutional challenge, relying on its earlier decision in Sajithanand, the Court reiterated that age restrictions act as a safeguard to ensure that only women within a safe and appropriate age bracket, capable of informed consent and physical endurance participate in the surrogacy and that such restrictions satisfy the doctrine of proportionality.
“It is well settled that Article 14 of the Constitution of India does not prohibit a reasonable classification in order to accomplish the specific objects to be achieved, provided such reasonable classification should not be artificial or arbitrary and that it must be based on significant differentiation and we find that the age restriction in the Surrogacy Act is based on a reasonable relationship with the required aim sought to be achieved by the law and therefore, we find that the contentions of the learned counsel for the appellants in this regard are not legally sustainable”, the Bench said.
The writ appeal was dismissed, and the Single Judge's judgment upholding the denial of the eligibility certificate was affirmed. No order as to costs was made.
Cause Title: Roopa P. Joy & Anr. v. Union of India & Ors. (Neutral Citation: 2026:KER:66329)
Appearances:
Appellant: T.J. Seema, Bhavana Velayudhan, Advocates and S. Sanal Kumar, Senior Advocate.
Respondent: O.M. Shalina, Deputy Solicitor General of India, A. Sreekala, Senior Government Pleader.