The Kerala High Court has recently rejected a couple’s request for an eligibility certificate for surrogacy, citing that they did not comply with the age requirements outlined in the Surrogacy Act. The court emphasized that these age limits are established with a “reasonable relationship” to the objectives of the legislation.
During the proceedings, Justices K Natarajan and Johnson John reviewed a petition from the couple, who had been denied the eligibility certificate by the Kerala State Assisted Reproductive Technology and Surrogacy Board due to the husband exceeding the maximum age limit of 55 years set by the Surrogacy Act.
The court’s ruling on September 1 stated, “It is well established that Article 14 of the Constitution of India allows for reasonable classification aimed at achieving specific legislative goals, provided such classification is not arbitrary or artificial and is based on significant distinctions. We find that the age limit stipulated in the Surrogacy Act is grounded in a reasonable relationship to the objectives intended by the law.”
The couple contended that they initiated their surrogacy journey in 2022, at which point the husband’s age was below the 55-year threshold. It was documented that their embryos were successfully fertilized and cryopreserved on August 30, 2022.
On June 21, 2023, the district medical officer of Thiruvananthapuram issued them a certificate of medical indication, confirming the necessity for surrogacy. Consequently, the couple believed they qualified to proceed under the law.
Accompanied by the surrogate mother, the couple filed a petition in the trial court in Thiruvananthapuram, seeking legal recognition of parentage and custody for the child anticipated from the surrogacy arrangement. The trial court granted their request on May 3, 2025.
The couple then sought an eligibility certificate from the Kerala State Assisted Reproductive Technology and Surrogacy Board on May 27, 2025, but their application was denied due to the husband’s age exceeding the limit. Subsequently, they filed a civil suit in the high court challenging the board’s decision, which was dismissed on June 1, 2026, prompting them to file an appeal.
Senior Advocate Sanal Kumar S, representing the couple, argued that the age restrictions should not be applied in a manner that “retrospectively undermines a reproductive procedure that has already significantly progressed.” He maintained that the previous ruling overlooked whether the relevant date for assessing eligibility should be when the reproductive procedure commenced or when the eligibility certificate was issued. His arguments pointed out that the interpretation leading to the dismissal resulted in an “unreasonable classification” violating Article 14 (equality before the law) of the Constitution.
Deputy Solicitor General O M Shalina, representing the Ministry of Health and Family Welfare, contended that the eligibility certificate’s issuance date should determine the couple’s age compliance, asserting that the surrogacy process could not commence until all legal conditions were satisfied. She noted that the Surrogacy Act was enacted in January 2022, while the couple’s embryos were cryopreserved in August 2022, indicating that their surrogacy procedures began after the law’s implementation without the requisite eligibility certificate.
The high court concluded that the couple’s situation did not fall under cases where surrogacy processes began prior to the enactment of the law, as their procedures and embryo fertilization occurred post-enactment. The court acknowledged that the couple’s counsel challenged the “constitutional validity” of the relevant Surrogacy Act section, claiming violations of Articles 14 and 21 (protection of life and liberty) of the Constitution. The court further noted an attempt to compare provisions of the Assisted Reproductive Technology (Regulation) Act with those in the Surrogacy Act.
The court clarified that the objectives and rationale behind the Surrogacy Act differ from those of the ART Act, emphasizing that interpretations of terms from one act should not be conflated with those from another, especially given their distinct wording, policy, and legislative intent. Consequently, the court dismissed the couple’s appeal.
