Mumbai : A couple from Nashik has challenged the rejection of their surrogacy application in the Bombay High Court. The court has asked the health and surrogacy authorities to respond. The application was turned down because the intending mother is 54 years old, while the law caps eligibility at 50.
The couple told the court they had gone through several unsuccessful IVF cycles and embryo transfers before deciding on surrogacy. Their plan involved the husband’s sperm and donor eggs. The competent authority nevertheless refused to issue the eligibility and essentiality certificate that the law requires before surrogacy can begin.
The legal question: The Surrogacy (Regulation) Act, 2021 sets out who may opt for surrogacy, and its age limits are part of a scheme meant to prevent exploitation. The court will have to decide whether the age bar is absolute, whether the Rules leave the authorities any room for discretion, and whether constitutional principles allow an exception in a case like this.
Two principles pull in different directions here. Courts cannot rewrite a clear statutory condition under the name of interpretation, because creating a new exception would amount to legislating. At the same time, constitutional courts can examine whether a rule has been applied arbitrarily, or whether an authority has misread the scope of its own powers.
The case also involves reproductive autonomy and privacy, because such proceedings rely on sensitive medical information. It reflects how IVF, donor gametes and gestational surrogacy have moved from private medical arrangements into a tightly regulated statutory framework.
The High Court has not yet decided whether the woman can qualify under the Act. The matter will be taken up after the authorities file their replies.
