Women Over 50 Years Old Cannot Be Surrogates: Kerala High Court.
The Kerala High Court has stated that a woman is not eligible for surrogacy once she turns 50, following the age rules set by the Surrogacy (Regulation) Act, 2021. Justice C.S. Dias, in a Single Bench, rejected a petition that questioned the age limits in the Act. The court explained that according to Section 4 of the Indian Majority Act, a woman becomes eligible for surrogacy at 23 and loses that eligibility the day before her 50th birthday. The language in Section 4 (c) (I) indicates that a woman can have a surrogate child only after reaching 23 and before turning 50, while men must be between 26 and 55 years old.
The case focused on Section 4(c)(i) of the Act, which requires couples to be aged 23 to 50 for women and 26 to 55 for men at the time of certification to qualify for surrogacy. The petitioners, a 46-year-old wife and her 52-year-old husband, sought a certificate for surrogacy after unsuccessful attempts with Assisted Reproductive Technology. However, the Kerala State Assisted Reproductive Technology and Surrogacy Board found the wife ineligible because she was born in 1974 and had already reached 50. The couple contended that she should be eligible until the day before her 51st birthday, citing Section 9 of the General Clauses Act.
The Court rejected this interpretation and stated that the maximum age limit cannot be extended beyond the day before a person turns 51. It highlighted that the legislature set these age limits based on biological factors related to natural conception, and courts cannot change these limits through special jurisdiction. The Court referenced earlier cases, including Jaison V. George v. State of Kerala (2019) and other Supreme Court decisions, which clarified that a person reaches a certain age the day before their birthday. It also noted that the General Clauses Act is about calculating time, not determining age.
The Court dismissed the couple’s petition, supporting the Board’s decision that the wife was correctly deemed ineligible after reaching 50. It confirmed that the age limits in the Surrogacy (Regulation) Act, 2021, must be followed strictly and cannot be extended by the courts. The Court stated, “the 3rd respondent has rightly concluded that the 1st petitioner is ineligible for an eligibility certificate under Section 4 (c) of the Act since she has attained the age of 50 years. Therefore, the petitioners’ request to declare the 1st petitioner eligible for an eligibility certificate is denied. The writ petition is dismissed.”
Cause Title: Rajitha P.V. v. Union of India [Neutral Citation No. 2025:KER:11881]
Appearance:
Petitioner: Advocates Adithya Rajeev, S.Parvathi, Safa Navas
Respondent: Advocate R V Sreejith, Deputy Solicitor General of India (Dy. SG) T C Krishna, Government Pleader Vidya Kuriakose
