Surrogacy (Regulation) Act 2021 | Age Limit Criteria Under Section 4(iii)(c)(I) Must Be Fulfilled As On Date Of Certification: Kerala High Court

"The age restriction under the Surrogacy (Regulation) Act, 2021 is based on a reasonable relationship with the required aim sought to be achieved by the law and therefore, we find that the contentions of the learned counsel for the appellants in this regard are not legally sustainable." Kerala High Court, in a significant judgment dated September 1, 2026, held that the eligibility criteria regarding the age of an intending couple under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, must be satisfied as on the date of issuance of the eligibility certificate.

A division bench comprising Justice K. Natarajan and Justice Johnson John clarified that the statutory age restrictions cannot be bypassed even if the reproductive procedure commenced or embryos were created shortly after the Act's inception if the mandatory certification was not obtained while the couple was within the prescribed age limit.

The appellants, an intending couple, challenged a single judge’s order that denied them permission to continue surrogacy services, citing the age bar stipulated under the Surrogacy (Regulation) Act, 2021. The appellants contended that they had initiated their surrogacy journey and cryopreserved embryos in August 2022, at which time they were within the legal age limit. They argued that denying them the right to complete the procedure solely due to subsequent aging violated their rights under Article 14 and Article 21 of the Constitution of India.

The primary questions before the court were whether the surrogacy procedure in the present case could be considered to have commenced prior to the enactment of the Surrogacy Act to avail the benefit of non-retrospectivity, and whether the age restriction under Section 4(iii)(c)(I) of the Act is constitutionally valid.

Clarifying the Timing of Eligibility

The court rejected the appellants' argument that the age limit should be determined as of the date of embryo creation. The bench emphasized that under the statutory framework, the "appropriate authority" is mandated to verify the eligibility of the intending couple specifically on the date of certification. The court observed that surrogacy procedures cannot be lawfully undertaken without possessing an eligibility certificate, and thus, failing to secure this certification within the statutory age bracket remains a fatal bar.

Court Rejects Retrospective Application Argument

The bench distinguished the present matter from the Supreme Court’s ruling in Vijaya Kumari S v. Union of India, which granted relief to couples whose procedures had crystallized prior to the Act’s commencement on January 25, 2022. Because the appellants here initiated their process and cryopreserved embryos on August 30, 2022, they fell squarely within the regulatory regime of the Act. Consequently, the court held that they could not claim exemption from age restrictions based on the rule against the retrospective operation of statutes.

Upholding Constitutional Validity

Addressing the challenge under Articles 14 and 21, the court reiterated that age restrictions in the Surrogacy Act are not arbitrary but are grounded in medical science, ethical necessity, and the welfare of the child. The bench noted that reproductive rights, while fundamental, are not absolute and are subject to reasonable state regulation. The court observed that the age limit is a "measured restriction" designed to prevent unethical practices and ensure safe reproductive outcomes.

Legality of Post-Act Procedures

The court further highlighted that the Act explicitly prohibits the use of any clinic for surrogacy procedures without satisfying the conditions under Section 4. Initiating such procedures after the Act came into force without the requisite eligibility certificate invites penal consequences under Sections 39 and 41 of the Act. The court underscored that such violations cannot be normalized or exempted by the judiciary.

Applying Purposive Interpretation

The bench emphasized the need to adopt an object-oriented approach to statutory interpretation, aiming to suppress the mischief the law seeks to address—namely, the commercialization and unethical exploitation rampant in the industry. The court concluded that comparing the Surrogacy Act with the Assisted Reproductive Technology (Regulation) Act, 2021, was misplaced, as the two statutes possess distinct legislative intents and policy frameworks.

Date of Decision: 01 September 2026