Surrogacy Act Must Be Read Harmoniously With ART Act: Bombay HC Allows 54-Year-Old Woman to Avail Surrogacy [Read Judgment]

Mumbai: The Bombay High Court has directed the Nashik Municipal Corporation to issue an Eligibility Certificate under the Surrogacy (Regulation) Act, 2021 to a couple in which the wife is 54, notwithstanding the upper age limit of 50 for women in Section 4(iii)(c)(I), by interpreting the provision purposively with the Assisted Reproductive Technology (Regulation) Act, 2021. 

A Bench of Justice Bharati Dangre and Justice Ashish S. Chavan delivered the judgment on 4 November 2026 in Writ Petition No. 11143 of 2026, but made it clear that it has not ruled on the validity of the age limit, and refused the Union’s request to stay the judgment.

The petitioners, identified only as X-1, a woman aged 54, and X-2, a man aged 53, are legally wedded spouses constituting an “intending couple” under the Act. They said that, after prolonged attempts to conceive and multiple cycles of IVF that did not result in a clinical pregnancy, an IVF specialist at Nashik gave a medical opinion on 27.06.2026 supporting gestational surrogacy and stating that the case deserved compassionate consideration. Their application for an Eligibility Certificate was rejected on 14.07.2026 by the Appropriate Authority, Nashik Municipal Corporation, solely because X-1’s age exceeded 50.

The petitioners sought a purposive reading of Section 4(iii)(c)(I), read with Rule 14 of the Surrogacy (Regulation) Rules, 2022 and Articles 14 and 21, so as to permit exceptional, medically justified cases, or, alternatively, a declaration that the provision is unconstitutional to the extent that it is an inflexible bar. They said that reproductive choice is part of personal liberty, but did not claim an unrestricted right to surrogacy.

The Union of India, through the Additional Solicitor General, relied on the report of the Parliamentary Select Committee, which suggested ages of 23 to 50 for women and 26 to 55 for men, and the view of the National ART and Surrogacy Board that the limits are appropriate, as the welfare of the child to be born is paramount. It said that the age limits were fixed after expert consultation to balance the interests of the parents and the child, and that Section 4(iii)(c)(I) is under challenge before the Supreme Court in W.P.(C) No. 756 of 2022. It relied on the Delhi High Court’s decision in XX v. Union of India and the Kerala High Court’s decision in Sajithanand S. v. Union of India, which had upheld the age limits.

The Court appointed Senior Advocate Sharan Jagtiani as Amicus Curiae, who, without questioning the legislature’s wisdom, argued that the Surrogacy Act and the ART Act are allied and cognate statutes, which came into force together and share a common Board. Under the ART Act, he said, age limits apply separately to a woman and a man (Section 21(g)), and several High Courts, including Calcutta, Kerala, Delhi, Madhya Pradesh and Gujarat, have held that one spouse crossing the age limit does not bar a commissioning couple from the services. He asked the Court to ask whether it is sufficient if one of the constituents of the intending couple is within the limits.

The Court noted that the 2026 Expert Committee report on conception at advanced parental age, on which the Union relied, was prepared after the two statutes came into force and was not the basis of the age bracket in either Act, though it may guide the legislature. It said that its jurisdiction to interfere with legislative wisdom is limited unless the provision’s implementation results in arbitrariness, and that it did not pronounce on validity.

The Court said that it was guided by the reasoning evolved by various High Courts on the age limit for a commissioning couple under the ART Act, where one spouse had crossed the limit but the other had not. Quoting one decision, it noted that a woman otherwise entitled to the benefit of ART cannot be put to hardship only because she approaches the authority as part of a couple, and that the same applies in reverse. It added that the Surrogacy Act is a regulatory statute aimed at preventing exploitation of surrogate mothers and protecting the rights of children, and that a purposive interpretation should assist in attaining its object.

Expressing agreement with the Amicus, the Court quashed the order of 14.07.2026 and issued a writ of mandamus to the Nashik Municipal Corporation to issue an Eligibility Certificate to the petitioners, declaring that they are eligible for surrogacy and that X-1 having crossed 50 shall not be an embargo, and, if required, for the ART procedure. It also directed the District Medical Board, Nashik, to issue the Certificate of Medical Indication, if the petitioners otherwise satisfy the medical requirements under the Act and the Rules.

After the judgment was pronounced, the Union’s counsel asked for a stay, saying the Union wished to test the decision before the Supreme Court. The Court rejected the request, observing that it had purposively interpreted the provisions of the Surrogacy Act with the ART Act, conferred the right on the petitioners to avail the procedure, and had “not determined the validity” of the provision prescribing the age bracket.

Appearances: For the Petitioners: Mr. Utkarsh R. Pondkule with Mr. Jagdish Deore and Mr. Akshay Desai. For Respondent No. 1/Union of India: Mr. Anil C. Singh, Additional Solicitor General, with others. Amicus Curiae: Mr. Sharan Jagtiani, Senior Advocate, with others. For the State (Respondent Nos. 3, 4 and 6): Mr. Ketan V. Joshi. For Respondent No. 5: Ms. Chaitrali Deshmukh.

Case Title: X-1 and Another v. Union of India through the Secretary, Ministry of Health and Family Welfare and Others, Writ Petition No. 11143 of 2026

[Read Judgment]