Surrogacy Age Limit in India: Kerala High Court Rejects Couple’s Plea Over Husband’s Age
The Kerala High Court has upheld the age restrictions under the Surrogacy (Regulation) Act, 2021, refusing to grant an eligibility certificate to a couple whose husband had crossed the prescribed upper age limit of 55 years.
The decision is significant because the couple argued that their surrogacy process had already substantially progressed when the husband was within the permitted age and that the later denial of eligibility would unfairly interfere with their reproductive plans.
The Court, however, held that the relevant age for determining eligibility was the age at the time of certification by the appropriate authority. It also noted that the couple's embryos had been created and cryopreserved only after the Surrogacy Act had come into force.
The judgment raises an important question in India's developing surrogacy law:
When should a couple's eligibility be assessed, the date when the reproductive process begins, the date embryos are frozen, or the date on which the statutory eligibility certificate is issued?
The Kerala High Court's answer in this case was clear: for the eligibility certificate, the age on the date of certification is crucial.
What Was the Case About?
The case concerned a married couple who approached the Kerala High Court after being denied an eligibility certificate by the Kerala State Assisted Reproductive Technology and Surrogacy Board.
The husband had been below the statutory upper age limit of 55 when the couple began their reproductive treatment in 2022.
During the treatment, fertilisation was successful and the resulting embryos were cryopreserved on August 30, 2022.
The couple subsequently obtained a certificate of medical indication from the District Medical Officer, Thiruvananthapuram, on June 21, 2023, recording the medical necessity for resorting to surrogacy.
They later approached the trial court seeking orders relating to the parentage and custody of the child proposed to be born through the surrogacy arrangement. On May 3, 2025, the trial court allowed their application.
However, when the couple approached the State ART and Surrogacy Board on May 27, 2025 for the statutory eligibility certificate, the application was rejected because the husband had crossed the prescribed upper age limit.
The couple challenged that decision before the High Court.
What Is the Age Limit Under the Surrogacy Law?
The Surrogacy (Regulation) Act, 2021 prescribes eligibility requirements for intending couples seeking surrogacy.
The dispute in this case centred on the upper age limit applicable to the intending husband.
The husband had been within the permitted age when the reproductive process began, but had crossed 55 years by the time the eligibility certificate was sought.
The couple argued that it would be unfair to apply the age restriction at the later certification stage because their reproductive process had already begun and embryos had already been created and frozen.
The State and Centre took the opposite position: the statutory authority had to assess eligibility when issuing the certificate, and the surrogacy procedure could not lawfully proceed without satisfying the statutory requirements.
What Did the Couple Argue?
The couple challenged the application of the age restriction on both statutory and constitutional grounds.
Their primary argument was that the relevant date should be the date on which the reproductive procedure commenced, rather than the later date on which the eligibility certificate was issued.
They argued that applying the age restriction at the certification stage effectively retrospectively defeated a reproductive procedure that had already substantially progressed.
They also challenged the age restriction as an unreasonable classification under Article 14 of the Constitution and relied upon the broader protection of reproductive autonomy under Article 21.
In essence, their argument was:
They were eligible when the reproductive process began, their embryos had already been created and frozen, and therefore a subsequent change in their age should not deprive them of the opportunity to complete the process.
What Did the Government Argue?
The Centre took a different approach. It argued that the appropriate authority was required to assess the couple's eligibility on the date of issuance of the eligibility certificate.
The government also pointed out that the Surrogacy Act had already come into force in January 2022, whereas the couple's embryos were created and frozen in August 2022.
Therefore, according to the government's argument, this was not a case involving reproductive treatment that had begun under a completely different legal regime.
The State also maintained that the statutory conditions had to be satisfied before the surrogacy procedure could proceed.
What Did the Kerala High Court Hold?
A Division Bench comprising Justice K. Natarajan and Justice Johnson John dismissed the couple's appeal.
The Court held that the age restriction under the Surrogacy Act had a reasonable relationship with the objective sought to be achieved by the legislation.
Therefore, the Court rejected the argument that the age classification violated Article 14 of the Constitution.
The Court also held that the relevant age for the eligibility certificate was the couple's age on the date of certification.
The fact that the husband was within the prescribed age when the embryos were frozen did not, by itself, preserve eligibility because the couple had not obtained the statutory eligibility certificate before commencing the surrogacy procedure.
Why Did the Date of Embryo Freezing Matter?
This is perhaps the most important part of the judgment. The couple argued that their reproductive process had already begun. But the Court noted that the embryos were created and cryopreserved on August 30, 2022, after the Surrogacy Act came into force on January 25, 2022.
Therefore, the Court did not consider this to be a case where a later law was being retrospectively applied to a reproductive process that had already begun under an earlier legal regime.
This distinction becomes particularly important because courts have previously considered cases involving embryos created and frozen before the Surrogacy Act came into force differently.
That does not mean that every pre-2022 embryo automatically creates an unrestricted right to proceed with surrogacy. Rather, the date of commencement of the reproductive process and the applicable legal framework can become highly relevant.
What About Reproductive Autonomy Under Article 21?
The couple also relied upon Article 21 of the Constitution, arguing that reproductive choices form part of personal liberty and reproductive autonomy.
The Court considered this argument but did not accept that reproductive autonomy invalidated the statutory age restrictions in this case. The Court found that the age restrictions had a reasonable relationship with the legislative objective behind the Surrogacy Act.
This is an important distinction. The judgment does not mean that reproductive autonomy has no constitutional significance. Rather, it indicates that the exercise of reproductive autonomy in the context of regulated surrogacy operates within the statutory framework enacted by Parliament.
In other words: A constitutional interest in reproductive autonomy does not necessarily mean that every person has an unrestricted statutory right to access surrogacy.
Why Did the Court Reject the Article 14 Challenge?
Article 14 prohibits arbitrary discrimination but does not prohibit every form of classification.
The Court applied the principle that a classification can be constitutionally valid if there is a reasonable basis for the distinction and a rational relationship between the classification and the objective of the law.
The Kerala High Court found that the age restriction in the Surrogacy Act satisfied this requirement.
The Court therefore rejected the argument that the age limit was an arbitrary or unreasonable classification.
The decision is consequently significant not only for surrogacy law but also for the broader constitutional question of how reproductive rights interact with statutory health and safety regulations.
Why the ART Act Could Not Be Used to Interpret the Surrogacy Act
Another argument raised before the Court involved the relationship between the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021.
The couple attempted to compare provisions of the two laws in support of their interpretation.
The High Court rejected that approach. It observed that the objectives and legislative purposes of the two statutes are different and that provisions from one statute should not automatically be used to interpret another when their wording, policy and legislative intent differ.
This is an important point for anyone dealing with IVF and surrogacy law. Although ART and surrogacy are closely connected in practice, they are governed by separate statutory frameworks with different legislative objectives.
Does This Mean Embryos Can Never Be Used After the Couple Crosses the Age Limit?
No such broad conclusion should be drawn from this judgment.
The decision is based on the specific statutory framework and facts before the Kerala High Court.
The crucial circumstances included:
the embryos were created and frozen after the Surrogacy Act came into force;
the couple had not obtained the statutory eligibility certificate before commencing the procedure; and
the husband had crossed the prescribed age by the time the eligibility certificate was sought.
Other High Courts and the Supreme Court have considered different situations involving embryos created or frozen before the new statutory framework came into force.
That distinction makes the timing of IVF treatment and embryo cryopreservation particularly important in surrogacy litigation.
A Wider Legal Trend in Indian Surrogacy Cases
The Kerala decision is part of a growing body of litigation concerning India's ART and Surrogacy laws.
High Courts across the country have been asked to consider issues including:
statutory age restrictions;
embryos created before the 2021 laws;
reproductive autonomy;
eligibility of intending parents;
parentage and custody;
embryo use and storage; and
the interaction between the ART Act and the Surrogacy Act.
A June 2026 analysis by The Indian Express reported that at least 33 petitions had reached High Courts over the preceding year challenging different aspects of the ART and Surrogacy legislation.
This growing litigation reflects the difficulty of applying relatively new statutory rules to reproductive procedures that can span several years.
An IVF cycle, embryo cryopreservation, eligibility certification, embryo transfer and birth do not necessarily occur at the same time. This creates difficult questions about which date should determine legal eligibility.
Conclusion
The Kerala High Court's decision is an important development in India's evolving surrogacy jurisprudence.
The Court upheld the statutory age restriction and refused to grant an eligibility certificate to a couple whose husband had crossed the age of 55. The fact that he had been within the permitted age when the couple underwent treatment and their embryos were frozen did not change the outcome because the embryos were created after the Surrogacy Act had come into force, and the required eligibility certificate had not been obtained before the surrogacy procedure commenced.
The judgment also reinforces a broader principle:
Reproductive autonomy exists within the legal framework governing regulated surrogacy.
For prospective parents, the case is a reminder that IVF treatment, embryo cryopreservation and statutory eligibility are interconnected but not necessarily interchangeable. The timing of each step and compliance with the applicable legal requirements can determine whether a surrogacy arrangement can proceed.
As Indian courts continue to consider challenges involving age limits, frozen embryos and reproductive autonomy, these decisions are likely to shape the interpretation of India's relatively new ART and Surrogacy laws.
Legal Disclaimer
This article is for general informational purposes only and does not constitute legal advice. Surrogacy laws and judicial interpretations may change, and eligibility depends on the specific facts and applicable legal framework. Individuals considering surrogacy should consult a qualified legal professional and the relevant authorities before taking any action.
The Author :
Dr. Sunil Khattri
+91 9811618704
Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.
Comments