Kerala High Court Clarifies Surrogacy Eligibility Age for Women

The Kerala High Court has provided a definitive interpretation of the age criteria for women seeking to opt for surrogacy under the Surrogacy (Regulation) Act, 2021. In a recent judgment, the Division Bench clarified that a woman's eligibility to pursue surrogacy extends throughout her 50th year, ceasing only upon reaching the age of 51.

Background

The case arose when an intending woman was denied an eligibility certificate for surrogacy services because her school records indicated she had already attained 50 years of age. A single-judge bench previously ruled that a woman becomes ineligible for surrogacy on the day before her 50th birthday, effectively limiting eligibility to women aged 23 to 49.

Division Bench's Interpretation

Upon appeal, the Division Bench, comprising Chief Justice Nitin Jamdar and Justice S. Manu, examined Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which stipulates that the intending couple must be between the ages of 23 to 50 years for females and 26 to 55 years for males on the day of certification to obtain an eligibility certificate for surrogacy. The Court also referred to Section 9 of the General Clauses Act, 1897, emphasizing the significance of the word 'to' in the prescribed age range to support its interpretation.

Court's Observations

The Court underscored that motherhood is a deeply personal and fundamental aspect of life. It emphasized that any interpretation leading to the permanent deprivation of the ability to bear a child through surrogacy must be approached with caution. The Bench stated:

"If one interpretation leads to a complete and irreversible loss—in this case, the inability to ever bear a child through surrogacy—it demands a higher level of scrutiny."

Conclusion

Consequently, the Division Bench set aside the earlier judgment and allowed the writ petition, declaring that the eligibility of an intending woman to avail of surrogacy services extends throughout her 50th year, ceasing only on the day she turns 51. This interpretation ensures that women up to the age of 50 are eligible for surrogacy, aligning with the legislative intent of the Surrogacy (Regulation) Act, 2021.