Kerala High Court upholds the 55-year age limit for men under the Surrogacy Act, rejecting a couple’s plea to use frozen embryos.
The Court held that eligibility must be assessed when the statutory eligibility certificate is issued, not merely when embryos were frozen.
The Kerala High Court has upheld the constitutional validity of the age restrictions prescribed under the Surrogacy (Regulation) Act, 2021, rejecting a married couple’s challenge after the husband crossed the statutory upper age limit of 55 years.
A Division Bench comprising Justice K. Natarajan and Justice Johnson John dismissed the appeal filed by the couple against the earlier decision of a Single Bench, which had refused to interfere with the statutory age requirement governing access to surrogacy services.
The ruling reinforces the legislative framework regulating surrogacy in India and underlines that reproductive choices, although constitutionally significant, are subject to statutory conditions framed in the interest of safe and regulated medical practices.
Couple Challenged Age Restriction
The couple had commenced treatment for surrogacy when the husband was below the prescribed upper age limit. As part of the procedure, embryos were successfully created and cryopreserved on August 30, 2022.
The couple subsequently obtained a medical-indication certificate and took further steps towards proceeding with surrogacy. They also obtained orders concerning the proposed child’s parentage and custody.
However, when they approached the Kerala State Assisted Reproductive Technology and Surrogacy Board for the required eligibility certificate in May 2025, their request was rejected because the husband had crossed 55 years of age.
The couple then approached the High Court, arguing that the age restriction should not defeat a surrogacy procedure that had already commenced. They contended that their eligibility ought to be determined with reference to the time when the reproductive procedure began and the embryos were frozen.
Age On Date Of Certification Is Crucial
The Division Bench rejected the argument.
The Court examined Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which prescribes the eligibility conditions for an intending couple. It held that the relevant age is the age of the intending couple on the date when the eligibility certificate is issued by the appropriate authority.
Therefore, merely being within the prescribed age bracket when the embryos were created or frozen does not, by itself, establish continuing eligibility under the Act.
The Court observed that the couple had not obtained the eligibility certificate before commencing the relevant statutory surrogacy procedure. Consequently, the husband’s age on the date of certification remained decisive.
Court Rejects Retrospective Application Argument
The couple had also argued that applying the age restriction to their case would amount to retrospective application of the law and would interfere with reproductive rights that had already crystallised.
The Bench did not accept the contention, noting that the embryos in the present case were frozen after the Surrogacy (Regulation) Act, 2021 had already come into force.
The Court also distinguished the statutory framework governing surrogacy from the Assisted Reproductive Technology (Regulation) Act, 2021, observing that the two enactments have different legislative objectives and their provisions cannot automatically be interpreted in the same manner.
Balance Between Reproductive Choice And Regulation
The judgment highlights the legal tension between individual reproductive choices and statutory regulation of assisted reproduction.
While couples may have legitimate expectations arising from fertility treatment and preservation of embryos, the Court has emphasised that eligibility for surrogacy must comply with the conditions prescribed by Parliament.
The decision therefore strengthens the regulatory framework surrounding surrogacy in India, particularly concerning the age of intending parents.
For readers following developments in reproductive rights and emerging areas of Indian law, more legal developments can be found in the National News section of The Legal Observer.
The ruling ultimately makes clear that the existence of frozen embryos does not automatically override statutory eligibility requirements. Where the law requires certification, compliance with the prescribed conditions remains essential before surrogacy services can proceed.
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