Eligibility Of Intending Woman To Avail Surrogacy Extends Throughout 50th Year; Ceases On The Day She Turns 51: Kerala High Court
The Kerala High Court allowed an Appeal of a couple against the Single Judge’s Judgment, which denied an eligibility certificate to them for surrogacy.
The Kerala High Court held that the eligibility of an intending woman to avail surrogacy extends throughout the 50th year and ceases on the day she turns 51.
The Court held thus in a Writ Appeal preferred by a Hindu couple aged 46 years and 52 years respectively, seeking permission for surrogacy under the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022, and challenging the Single Judge’s Judgment, which denied eligibility certificate to them.
A Division Bench comprising Chief Justice Nitin Jamdar and Justice S. Manu observed, “… we hold that since, under Section 4(iii)(c)(I) of the Act of 2021, the eligibility of intending woman to avail of surrogacy services extends throughout the 50th year, ceasing on the day the intending woman turns 51, Petitioner No. 1 is eligible for a certificate under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021, until 21 June 2025.”
The Bench remarked that motherhood is a deeply personal and fundamental aspect of life and any interpretation of a statute that results in depriving someone of it permanently, must be approached with caution.
Advocate Adithya Rajeev appeared on behalf of the Appellants while Central Government Counsel (CGC) R.V. Sreejith and Senior Government Pleader (SGP) K.P. Harish appeared on behalf of the Respondents.
Brief Facts
The Appellants were married as per Hindu customary rites and ceremonies in 2008. The wife aged 46 years, was suffering from endometriosis and was unable to conceive pregnancy naturally. She had undergone multiple cycles of treatment involving Assisted Reproductive Technology (ART) Services. She had also undergone several other treatments for the same but to no avail. Due to this, she proposed to conceive through surrogacy by identifying a surrogate mother. The couple secured a certificate of medical indication for intending couple by the District Medical Officer and also identified a surrogate mother. Thereafter, they filed a Petition before the Judicial First Class Magistrate and an Order was passed in their favour.
However, the doctor attached to the surrogacy clinic found that there were some medical conditions in the proposed surrogate mother, which made her incapable of participating in the surrogacy process. The couple then identified another surrogate mother and their Application was allowed by the Magistrate. Pursuantly, they approached the Kerala State Assisted Reproductive Technology and Surrogacy Board but it refused to issue the eligibility certificate to the wife and adjourned the consideration of Application, stating that she falls beyond the stipulated age limit of 50 years. Being aggrieved, they approached the High Court but the Single Judge dismissed their Writ Petition holding that the wife was ineligible for the same as she has attained the age of 50 years as per her date of birth in the school admission register. Challenging this, the couple filed an Appeal.
Reasoning
The High Court in view of the above facts, noted, “The upper age limit of 50 years for the intending woman takes away her rights forever. In contrast, modifying the lower age limit of 23 does not permanently deprive a woman of her rights. Similarly, the age requirement for surrogate mothers differs due to physiological, medical, and social considerations. Therefore, in this judgment, our focus is solely on the number “50” in relation to the intending woman, as it marks the final point beyond which she is permanently excluded from surrogacy rights. Any observations regarding other age stipulations are only illustrative.”
The Court said that under Section 4(iii)(c)(I) of the 2021 Act, the eligibility of intending woman extends throughout the 50th year, ceasing the day before the intending woman turns 51 and there is no contrary mandate in the Act that warrants any other interpretation of age.
“Even assuming that Section 9 of the Act of 1897 is not made applicable and Section 4(iii)(c)(I) of the Act of 2021 has to be interpreted on a stand-alone basis, applying the basic principles of statutory interpretation would still lead to the same result. The interpretation of a phrase in the legislation has to be understood in the context of that law and the prejudice that follows from it. Therefore, it is necessary to briefly advert to the scheme of the Act of 2021”, it further elucidated.
The Court added that in the absence of any specific indication to the contrary under the 2021 Act, a common-sense and purposive approach can be adopted. Moreover, it enunciated that the provision on age eligibility should be understood in a way that ensures ethical surrogacy practices rather than creating unnecessary restrictions.
“The Act does not seek to arbitrarily deny opportunities for intending couples but to regulate surrogacy within a structured legal framework. Therefore, there is no indication in the scheme of the Act to deny eligibility to intending woman up to her reaching 51 year”, it also said.
The Court emphasised that the statutory interpretation is not an abstract exercise – it directly affects people's rights and lives and the interpretation of a phrase in any statute not only has to be understood within the specific context of that statute but also in light of its consequences.
“In this case, what is at stake is the permanent loss of the opportunity to become a mother. … If one interpretation leads to a complete and irreversible loss– in this case, the inability to ever bear a child through surrogacy – it demands a higher level of scrutiny. When this provision, read with Section 9 of the Act of 1897 and the scheme of the Act of 2021, provides an eligibility window between the age of 23 to 50 years, there is no reason to rely on the Majority Act to close the door on motherhood prematurely when the Legislature intends to allow it to remain open”, it concluded.
Accordingly, the High Court allowed the Appeal, set aside the Single Judge’s Judgment, and directed the authorities to issue the eligibility certificate to the Appellants within one week.
Cause Title- Rajitha P.V. & Anr v. Union of India & Ors. (Neutral Citation: 2025:KER:21383)
Appearance:
Appellants: Advocates Adithya Rajeev, Safa Navas, and S. Parvathi.
Respondents: CGC R.V. Sreejith and SGP K.P. Harish.
