Wife 54, husband 53: Bombay HC orders surrogacy eligibility certificate despite the age-50 cap
A Division Bench of Justice Bharati Dangre and Justice Ashish S. Chavan read the Surrogacy Act together with the ART Act, quashed a Nashik refusal and declined the Union request for a stay to appeal to the Supreme Court.
The Surrogacy (Regulation) Act, 2021 says a woman in an intending couple must be no older than 50. On 4 November 2026 the Bombay High Court ordered a surrogacy eligibility certificate for a couple in which the wife is 54, because the husband, at 53, is inside his own limit of 55.
The Division Bench of Justice Bharati Dangre and Justice Ashish S. Chavan quashed a refusal by the Nashik Municipal Corporation. It did so by reading the Surrogacy Act together with the Assisted Reproductive Technology (Regulation) Act, 2021, and did not strike down the age bar.
The petitioners are anonymised in the judgment as X-1 and X-2, and this report keeps them so. Justice Dangre wrote the judgment.
One ground, and nothing else
X-1, aged 54, and X-2, aged 53, are legally married and together an intending couple under the Surrogacy Act. They told the court they had made serious and continuous efforts to conceive naturally, then went through several cycles of in vitro fertilisation at recognised centres, without a successful pregnancy.
On 27 June 2026 an IVF specialist in Nashik gave a medical opinion on the long infertility history and repeated failed attempts. The opinion recommended gestational surrogacy and said the case deserved compassionate and equitable consideration.
The couple applied to the Appropriate Authority under the Act, which sits within the Nashik Municipal Corporation, for an eligibility certificate under Section 4(iii)(c). They also began the process of getting a certificate of medical indication from the District Medical Board.
On 14 July 2026 the Appropriate Authority refused. Its order recorded that X-1 is 54, that the Act caps a woman at 50, and that the certificate therefore could not be issued.
Four reliefs, one of them a fallback
The couple challenged the refusal under Articles 14 and 21 of the Constitution. They asked the court to read Section 4(iii)(c)(I) purposively, with the object of the Act and Rule 14 of the Surrogacy (Regulation) Rules, 2022, so that exceptional and medically justified cases could be considered on merit.
In the alternative they asked the court to declare the provision unconstitutional to the limited extent that it bars every such case without exception. They also sought directions to the Appropriate Authority to reconsider, and to the District Medical Board to issue the medical certificate if the couple qualified.
The Bench first heard the petition on 1 September 2026. It saw that the case turned on the Surrogacy Act, its Rules and the ART Act, and asked Senior Advocate Sharan Jagtiani to assist as amicus curiae.
On 28 September it told the Union and the State to file replies quickly, noting that X-1 was 54 and time was running short for her. Once the replies were in, Rule was issued by consent and made returnable forthwith. Judgment was reserved on 26 October.
The couple: reproductive choice
Mr Utkarsh Pondkule appeared for the couple. He relied on Suchita Srivastava v. Chandigarh Administration for the proposition that a woman’s reproductive choice is part of personal liberty under Article 21, including the freedom to decide on procreation.
He made clear that the couple did not claim an unrestricted right to surrogacy. They sought only a fair and constitutionally compliant application of the framework.
Gestational surrogacy, he said, was the only option left on the expert medical opinion. Parliament had recognised it as a lawful procedure, so access could not be denied by an interpretation that ignored the medical evidence and the object of the law.
The Union: a choice Parliament made
Additional Solicitor General Anil C. Singh relied on an affidavit of 21 October 2026 from an Under Secretary in the Department of Health Research. The age limits, he said, follow the report of the Parliamentary Select Committee, which suggested 23 to 50 for women and 26 to 55 for men on the day of certification.
The expert members of the National Assisted Reproductive Technology and Surrogacy Board agreed with the Select Committee, the affidavit said. The Board considered the future of the child paramount and thought the existing limit appropriate.
The Union also relied on a report on the implications of conception at advanced parental age, produced by an expert committee of the Department of Health Research. Mr Singh said it described a decline in health, stamina and functional capacity in older parents, with risks of caregiving disruption and emotional insecurity for the child.
He pointed out that Section 4(iii)(c)(I) is already under challenge in the Supreme Court in Arun Muthuvel v. Union of India, WP(C) 756 of 2022, and connected cases.
He cited the Delhi High Court in XX v. Union of India and the Kerala High Court in Sajithanand S. v. Union of India, both of which upheld the age limits.
On the text, he argued that an intending couple is one unit and that the three requirements in the clause, marriage, the woman’s age and the man’s age, apply together. Satisfaction by one spouse, he said, does not make the couple eligible.
He pointed to Section 4(iii)(a)(I), which speaks of a medical indication in favour of either or both members of the couple. When Parliament meant one partner, he said, it said so. On the age clause it did not.
The provision was unambiguous, he added, and even a purposive reading would lead to the same result.
The amicus: two statutes, two answers
Mr Jagtiani did not take a contesting position. He formulated two questions for the court.
The first was whether the age limits are absolute for any couple outside them, or whether it is enough that one member of the intending couple is within the limits. The second, if they are absolute, was whether the clause should be read down or declared unconstitutional to a limited extent.
He began with the ART Act, which came into force on the same day. It sets no age limit for a commissioning couple. Its Section 21(g) tells clinics to serve a woman aged 21 to 50 and a man aged 21 to 55.
Several High Courts, he said, had held that when one spouse is outside those limits, the couple can still go ahead, because the couple as such has no age cap. The same logic, he argued, belongs in the Surrogacy Act, which also sets no age limit in the definition of an intending couple.
He drew a comparison within the Surrogacy Act. A widow or divorcee seeking surrogacy alone must be between 35 and 45. A woman with a partner may go up to 50, which suggests that the law treats a shared responsibility for the child as the answer to age.
He also put an Article 14 example. A couple using donor eggs and the husband’s sperm, with the embryo placed in the wife, is eligible under the ART Act while the husband is in range, even if the wife is 54. If she cannot carry and the embryo goes to a surrogate, the same couple fails.
The only difference, he said, is the surrogate, and that has no rational link to the aims of the law. If a provision allows two readings, he argued, the court should prefer the one that avoids the anomaly and so avoids the constitutional question.
As a further route, he said the Appropriate Authority retains discretion under Section 4(iii)(c)(I) read with Section 36(h), and could be told to reconsider.
What the respondents did not dispute
The Bench began from a narrow point. The respondents had not disputed the couple’s marital status, their medical history, their genuine wish for a biological child, their physical and mental fitness, or any other statutory requirement for gestational surrogacy.
The question, the court said, was this:
“whether this criteria can be applied as an inflexible disqualification, despite the fact that the intending couple has exhausted recognised infertility treatment, and satisfied all other statutory requirements” (para 23)
Two Acts read as one code
The court traced the two statutes through their objects and history. The Surrogacy Act aims to stop commercial surrogacy and exploitation of surrogate mothers. The ART Act regulates clinics and banks that handle gametes and embryos.
Both came into force on the same day and each refers to the other. Both are run through the National Board constituted under Section 17 of the Surrogacy Act. Every surrogacy, the court noted, involves assisted reproductive technology, because the embryo is created outside the body and then transferred.
Citing J.K. Steel Ltd. v. Union of India on laws that form one system, the court agreed with the amicus. It said of the two Acts:
“they are part of a single Code” (para 32)
It added that Rule 14 of the Surrogacy Rules, which describes when a woman may opt for surrogacy after repeated failed IVF or ICSI attempts, points the same way, since those are assisted reproductive techniques.
How other High Courts read the ART bar
The court then went through the decisions on Section 21(g). In Sanchita Ghosh, the Calcutta High Court held that the bar applies to a man or woman as an individual and that a commissioning couple has no collective age limit. One spouse inside the limits could take the couple to a clinic.
The Kerala High Court followed that view in Devayani S., a decision upheld by its Division Bench. It noted that a Parliamentary Standing Committee suggestion of a combined age limit of 90 years for the couple had not been adopted.
The Delhi High Court in Shewta Tuteja held that the age restriction applies when ART treatment begins and does not bar the use of embryos created while the woman was eligible.
A Gujarat High Court decision of 2 September 2026, in X2 v. Chief Medical Officer, allowed IVF for a menopausal wife above 50 whose husband was within his limit.
The Bench said it saw no need to multiply examples. In each, it observed, a spouse beyond the limit did not stop the couple.
No study behind the age limit
The court looked at what Parliament had before it. When the Select Committee deleted the definition of infertility and recast the definition of an intending couple, it recorded that a five-year wait was too long. The court found no study of age, whether medical or on caregiving, behind the limits.
The expert committee report on which the Union relied is dated 21 January 2026, the court noted. It is recent and cannot have been the basis for limits fixed when the Act came into force.
On its content, the court said the health risks of an older woman carrying a pregnancy are not the same in surrogacy. The surrogate must be aged between 25 and 35, so those risks do not arise in the way the report describes.
The psychological and caregiving concerns, it said, apply equally to a child born by surrogacy and a child born through ART. It said it failed to understand how the factor could be applied only to the first.
Reproductive autonomy and Article 21
The Bench turned to the Supreme Court’s decision in Vijaya Kumari S. v. Union of India, heard with Arun Muthuvel, which concerned couples whose surrogacy process had begun before the Act. It cited the passages there on reproductive autonomy as part of Article 21, drawn from Suchita Srivastava and Puttaswamy.
That jurisprudence, the High Court said, extends to the right to have a child through assisted reproductive technology, whether the woman carries the embryo herself or another carries it for her. It should operate with full force in step with progressive interpretation.
The court also noted that no research showed a woman above 50 and a man above 55 cannot meet a child’s emotional and psychological needs. Given the course High Courts have taken under the ART Act, it saw no reason to withhold the principle here.
The husband was within the age bracket, it said, and together the couple can care for the child.
A Madras case as a test
The Bench also referred to the Madras High Court in Indumathi v. State of Tamil Nadu. There a surrogacy request was refused because the intending mother had crossed 50, and the refusal was set aside after the Supreme Court’s view that the Act does not reach procedures already begun.
If the Union justifies the cap by saying that parents over the limit cannot care for a child for roughly 20 years, the court said, then allowing a child to be born in such a case after 2024 leaves no justification for denying these petitioners.
What the court left undecided
The judgment is careful about its limits. The court said it was not testing the age bar and would not interfere with legislative wisdom unless arbitrariness is shown. It said:
“we have not ruled upon the validity of the provision” (para 53)
Any later challenge, it said, would have to consider all relevant aspects, including the study of how age affects child rearing. The 2026 expert report is detailed, it said, and may guide Parliament if it wishes to change the law.
For these petitioners, the court followed the reasoning developed for commissioning couples under the ART Act. A woman otherwise entitled to ART who is put to hardship only because she applies as part of a couple, it said, cannot be discriminated against, and the same applies the other way round.
The Union asks for a stay
After the operative directions, the court recorded an application by Mr Mehta, counsel for the Union. He asked for a stay of the judgment because the Union wants to test the decision in the Supreme Court.
The Bench refused. It repeated that it had interpreted the provisions of the Surrogacy Act purposively with the ART Act, and had conferred a right on these petitioners to use surrogacy. It had not decided the validity of the age bracket for intending couples.
The request was therefore rejected. The judgment records no other condition on the order.
Order
The court quashed the order of 14 July 2026 by which the Appropriate Authority under the Surrogacy Act at the Nashik Municipal Corporation refused the eligibility certificate because X-1 had crossed the age limit.
It issued a writ of mandamus to that authority to issue an eligibility certificate to the petitioners, declaring them eligible for surrogacy and, if required, the ART procedure. X-1 having crossed 50 is not to stand in the way.
It issued a writ of mandamus to the District Medical Board, Nashik, to issue the certificate of medical indication if the petitioners otherwise satisfy the medical requirements of the Act and the Rules. The petition was made absolute in those terms.
The Union’s request for a stay was rejected. The judgment sets no deadline for the certificates.