The Kerala High Court has declined to relax the statutory age requirement for intending parents seeking surrogacy. The court held that crossing the prescribed age during the legal process can affect eligibility, even when embryos had already been created and preserved.
Kerala High Court Upholds Surrogacy Age Rules, Rejects Couple’s Plea for Eligibility Certificate
The Kerala High Court has refused to grant relief to a couple who sought permission to proceed with surrogacy after the husband crossed the maximum age prescribed under the Surrogacy (Regulation) Act.
A Division Bench of Justices K Natarajan and Johnson John held that the statutory age restrictions for intending parents cannot be ignored merely because the couple had already taken certain steps in the reproductive process. The court also found that the age conditions prescribed by the law have a reasonable connection with the objectives of the legislation.
Why the Couple Approached the High Court
The couple had sought an eligibility certificate from the Kerala State Assisted Reproductive Technology and Surrogacy Board. Their request was rejected because the husband had crossed the upper age limit of 55 years prescribed under the surrogacy law.
The couple argued that their reproductive treatment had started when the husband was still within the permitted age. They therefore claimed that their case should not be rejected simply because he became older while the legal process was continuing.
According to the records placed before the court, the couple underwent treatment in 2022 and their embryos were successfully fertilised and frozen on August 30, 2022.
The couple later obtained a medical indication certificate from the District Medical Officer, Thiruvananthapuram, on June 21, 2023. The certificate recorded the medical need for them to pursue surrogacy.
They subsequently approached the trial court in Thiruvananthapuram along with the proposed surrogate mother, seeking orders concerning parentage and custody of the child expected through the arrangement. The trial court granted their request on May 3, 2025.
However, when the couple approached the State Assisted Reproductive Technology and Surrogacy Board on May 27, 2025, for the statutory eligibility certificate, their application was rejected because the husband had crossed the prescribed age.
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Couple Challenged the Age Requirement
The couple challenged the Board’s decision before the Kerala High Court.
Their lawyers argued that applying the age requirement at a later stage effectively destroyed a reproductive procedure that had already progressed substantially.
They also questioned which date should be used for determining eligibility — the date when the reproductive treatment began or the date when the eligibility certificate was issued.
According to the couple, treating them differently from people who completed the relevant procedure earlier amounted to an unreasonable classification and violated the equality guarantee under Article 14 of the Constitution.
They also raised constitutional objections under Articles 14 and 21 and questioned the validity of the relevant provision of the Surrogacy Act.
Government’s Argument Before the Court
The Centre took a different position.
The Deputy Solicitor General appearing for the Ministry of Health and Family Welfare argued that eligibility had to be assessed when the competent authority issued the eligibility certificate.
The government also pointed out an important fact: the Surrogacy (Regulation) Act had already come into force when the couple’s embryos were fertilised and cryopreserved in August 2022.
Therefore, according to the government’s argument, the couple could not claim that their case arose from a surrogacy procedure completed before the new law became applicable.
The government further submitted that the statutory conditions had to be satisfied before proceeding with surrogacy.
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Court Says Age Restriction Is Constitutionally Valid
The High Court rejected the couple’s challenge to the age requirement.
The Bench held that Article 14 does not prevent legislation from creating reasonable classifications when those classifications have a meaningful connection with the purpose of the law.
In the court’s view, the age limits contained in the Surrogacy Act were not arbitrary. They had a rational connection with the objectives sought to be achieved by the legislation.
The court therefore found no sufficient basis to strike down or disregard the age requirement.
Embryos Were Frozen After the Law Came Into Force
One of the important aspects of the judgment was the timing of the couple’s reproductive treatment.
The court noted that their fertilised embryos were frozen on August 30, 2022. Since the Surrogacy Act had already come into operation, the couple could not place themselves in the category of cases where reproductive procedures had begun before the law was enacted.
This distinction was significant to the court’s decision.
The fact that the couple had started medical treatment and created embryos did not, by itself, give them an exemption from the statutory requirements applicable to surrogacy at the relevant time.
Surrogacy Act and ART Act Cannot Be Treated as the Same
The couple had also attempted to rely on provisions of the Assisted Reproductive Technology (Regulation) Act while challenging the interpretation of the Surrogacy Act.
The High Court, however, said that the two laws have different objectives and legislative purposes.
According to the court, provisions contained in one legislation cannot automatically be interpreted by borrowing meanings from another law when their wording, policy considerations and legislative intent are different.
The Bench therefore declined to accept the comparison made by the petitioners.
Kerala High Court Dismisses the Plea
After examining the statutory framework and the circumstances of the couple’s case, the Kerala High Court upheld the decision refusing the eligibility certificate.
The judgment makes clear that undergoing part of a reproductive procedure before an individual crosses the prescribed age does not automatically create an exemption from the statutory eligibility requirements.
The court ultimately dismissed the couple’s plea and allowed the existing age restrictions under the Surrogacy (Regulation) Act to stand.
What This Judgment Means
The ruling highlights the importance of complying with the statutory requirements governing surrogacy in India.
For intending parents, beginning medical treatment or freezing embryos does not necessarily mean that later statutory requirements can be avoided. Where the law requires eligibility to be established before proceeding with surrogacy, the prescribed conditions remain important.
The judgment also reinforces the principle that courts will generally uphold legislative classifications when they are reasonable, non-arbitrary and connected to the purpose of the legislation.
For couples considering surrogacy, the case underlines the need to understand the applicable legal requirements before starting the process and to obtain the necessary approvals from the competent authorities.