Background of the Case
The Bombay High Court, comprising Justice Bharati Dangre and Justice Ashish S. Chavan, has permitted a married couple, including a 54-year-old woman, to pursue surrogacy despite the woman having crossed the statutory upper age limit of 50 years prescribed under the Surrogacy (Regulation) Act, 2021.
The petition was filed by a married couple, identified as X-1 and X-2, aged 54 and 53 years respectively. The couple had made prolonged efforts to conceive naturally and had undergone multiple cycles of In Vitro Fertilisation (IVF) at recognised fertility centres. However, the treatments did not result in a successful pregnancy.
Following medical consultations and repeated unsuccessful fertility treatments, specialists advised the couple to consider gestational surrogacy as an alternative.
The proposed procedure involved the use of a donor's oocyte and the husband's sperm. Based on the medical advice, the couple approached the Appropriate Authority under the Surrogacy (Regulation) Act, 2021, seeking an Eligibility Certificate.
Rejection of the Eligibility Certificate
The Appropriate Authority of Nashik Municipal Corporation rejected the couple's application on July 14, 2026.
The sole reason for rejection was that the woman was 54 years old and had exceeded the maximum permissible age of 50 years prescribed under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.
Aggrieved by the decision, the couple approached the Bombay High Court, challenging the rejection and seeking relief under Articles 14 and 21 of the Constitution of India.
They contended that reproductive autonomy forms an integral part of personal liberty and that their application ought not to have been rejected mechanically without considering the medical circumstances of the case.
Arguments of the Union Government
The Union Government opposed the petition and maintained that both members of an intending couple must independently satisfy the statutory age requirements.
Under Section 4(iii)(c)(I) of the Surrogacy Act, an intending couple must be married, with the woman aged between 23 and 50 years and the man aged between 26 and 55 years on the date of certification.
The Government relied upon the recommendations of the Parliamentary Select Committee and an Expert Committee report concerning the implications of conception at an advanced parental age.
It argued that the age restrictions were introduced to protect the interests and welfare of children born through surrogacy. According to the Government, advanced parental age could result in reduced caregiving capacity, health complications, psychological difficulties and challenges in providing long-term parental support.
The Government further submitted that the statutory conditions could not be relaxed merely because the couple had experienced difficulties in conceiving.
Legal Issue Before the Court
The principal question before the High Court was whether an intending couple could be denied an Eligibility Certificate for surrogacy merely because one spouse had crossed the prescribed age limit, even though the other spouse continued to satisfy the statutory age requirement.
The Court examined Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, alongside the Assisted Reproductive Technology (Regulation) Act, 2021.
It also considered whether the two legislations should be interpreted harmoniously, keeping in mind their common objective of regulating assisted reproductive procedures and protecting the interests of persons seeking reproductive assistance.
Relationship Between the Surrogacy Act and ART Act
The Court observed that the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 are closely connected legislations and must be read together.
Surrogacy procedures necessarily involve assisted reproductive technology, as the sperm or oocyte is handled outside the human body before the embryo is transferred into the reproductive system of the surrogate mother.
The Bench also examined Section 21(g) of the ART Act, which prescribes age-related conditions for providing assisted reproductive technology services.
The Court noted that several High Courts had previously considered cases involving commissioning couples where one partner had crossed the prescribed age limit. In those cases, the courts had adopted an interpretation that considered the couple collectively rather than treating the age restriction applicable to one partner as an automatic disqualification for both.
The Bombay High Court considered this line of judicial reasoning relevant while interpreting the provisions of the Surrogacy Act.
Court's Observations on Reproductive Autonomy
The Bench recognised that reproductive autonomy is an important aspect of personal liberty and dignity protected under Article 21 of the Constitution.
Referring to the principles recognised by the Supreme Court in Suchita Srivastava v. Chandigarh Administration and K.S. Puttaswamy v. Union of India, the Court observed that reproductive choices include decisions concerning procreation and the manner in which individuals seek to exercise their reproductive rights.
The Court emphasised that reproductive autonomy must be given due recognition while interpreting legislation regulating assisted reproductive technology and surrogacy.
The Bench observed:
"The right to make reproductive choices, being recognised as a facet of personal dignity enshrined in Article 21 of the Constitution definitely must operate with full force by keeping in mind the progressive interpretation of laws, in alignment with international norms and changing social dynamics, so that it ultimately ensures every couple/an individual woman to avail the reproductive rights to its fullest by addressing the societal and systematic barriers in its way."
Consideration of Advanced Parental Age and Child Welfare
The Union Government had placed considerable reliance on an Expert Committee report dated January 21, 2026, which examined the medical, psychological and caregiving implications of advanced parental age.
The report highlighted concerns such as declining parental health, reduced caregiving capacity, increased parenting stress and possible difficulties in providing emotional and psychological support to children during their formative years.
The High Court acknowledged the importance of these considerations. However, it observed that the report had been prepared in 2026 and was not the scientific basis on which the original age restrictions under the Surrogacy Act and the ART Act had been introduced.
The Bench also made an important distinction between conventional assisted reproductive procedures and gestational surrogacy.
In gestational surrogacy, the child is carried by a surrogate mother who must satisfy the prescribed age requirements. Therefore, certain medical risks associated with an advanced-age woman personally carrying a pregnancy may not arise in the same manner.
The Court further observed that psychological and caregiving concerns associated with advanced parental age would apply equally to children born through surrogacy and those born through assisted reproductive technology. Such considerations could not be selectively applied only to couples seeking surrogacy.
Reliance on Previous High Court Decisions
The Bombay High Court considered several decisions of different High Courts concerning age restrictions applicable to commissioning couples under the ART Act.
The Bench particularly relied upon the judicial approach of treating the commissioning couple as a collective unit in circumstances where one partner exceeded the prescribed age limit while the other remained eligible.
The Court also referred to the Madras High Court's decision in Indumathi & Anr. v. State of Tamil Nadu & Ors., which concerned a woman who had crossed the prescribed age limit and sought permission to undergo surrogacy.
The Bench observed that the Supreme Court's decision in Vijaya Kumari S. & Anr. v. Union of India had recognised that the Surrogacy Act would not retrospectively prevent continuation of surrogacy procedures that had already commenced before the legislation came into force.
Considering these judicial developments, the Bombay High Court found no justification for denying the benefit to the couple before it merely because the wife had crossed 50 years of age while the husband continued to satisfy the prescribed age requirement.
Court's Findings on the Age Restriction
The Court held that the statutory age requirements should be interpreted purposively, keeping in mind the relationship between the Surrogacy Act and the ART Act.
The Bench found that the reasoning adopted by various High Courts in relation to commissioning couples under the ART Act could appropriately guide the interpretation of the corresponding provisions governing intending couples under the Surrogacy Act.
Importantly, the Court did not declare the statutory age restrictions unconstitutional or hold that the prescribed limits could be disregarded in every case.
The Bench expressly clarified:
"We must clarify that we have not ruled upon the validity of the provision prescribing the maximum age limit and whenever such challenge is faced, all the relevant aspects, including the study of impact of age in rearing up children at advanced age will receive due consideration."
The Court therefore confined its decision to the interpretation of the statutory provisions in the particular circumstances of the case.
Final Decision
Allowing the writ petition, the Bombay High Court quashed the order dated July 14, 2026, passed by the Appropriate Authority of Nashik Municipal Corporation, which had rejected the couple's application for an Eligibility Certificate.
The Court issued a writ of mandamus directing the Appropriate Authority to issue an Eligibility Certificate to the petitioners.
It specifically declared that the fact that the woman had crossed 50 years of age would not, by itself, prevent the couple from undergoing the surrogacy procedure or, if required, the assisted reproductive technology procedure.
The Court also directed the District Medical Board, Nashik, to issue the Certificate of Medical Indication, provided the couple otherwise satisfied the medical requirements prescribed under the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022.
The Union Government subsequently requested the Court to stay the judgment to enable it to challenge the decision before the Supreme Court. However, the Division Bench rejected the request, reiterating that it had interpreted the relevant statutory provisions without deciding the constitutional validity of the prescribed age restrictions.
Legal Significance of the Judgment
The decision highlights the importance of interpreting legislation governing surrogacy and assisted reproductive technology in a harmonious and purposive manner.
It recognises that the eligibility of an intending couple should not necessarily be determined by treating the age-related disqualification of one spouse as an automatic bar against both, particularly where the other spouse satisfies the prescribed age criteria.
However, the judgment does not abolish the statutory age limits or create an unrestricted entitlement to surrogacy for persons above the prescribed age.
Its significance lies in the Court's interpretation of the existing statutory framework and its recognition of reproductive autonomy, personal dignity and the need to consider the circumstances of an intending couple while applying the law.
Case Details
Case Name: Sangita Pundlik Babar & Anr. v. Union of India & Ors. (X-1 & Anr. v. Union of India & Ors.)
Court: Bombay High Court
Date of Decision: November 4, 2026
Case Number: Writ Petition No. 11143 of 2026
Coram/Judges: Justice Bharati Dangre and Justice Ashish S. Chavan
