The Kerala High Court has upheld the statutory age limit set out in the Surrogacy (Regulation) Act, dismissing an appeal by a couple who were denied an eligibility certificate after the husband exceeded the prescribed upper age boundary of 55 years.
A division bench comprising Justice K Natarajan and Justice Johnson John held in a September 1 order that the statutory age ceiling does not violate Article 14 of the Constitution. The bench noted that constitutional equality provisions allow for reasonable classification to achieve specific legislative aims, provided the classification is based on clear differentiation and is neither arbitrary nor artificial. The court concluded that the age bar set by the legislature carries a reasonable relationship to the objectives sought by the surrogacy law.
The ruling affirmed the rejection of the couple’s application by the Kerala State Assisted Reproductive Technology and Surrogacy Board, as well as a single-judge order dated June 1, 2026, which had initially dismissed their civil challenge.
Background of the Dispute
The couple began their reproductive treatment in 2022, during which period the husband was under the maximum statutory threshold of 55 years. Following medical procedures, their embryos were fertilised and cryopreserved on August 30, 2022.
The District Medical Officer in Thiruvananthapuram issued the couple a certificate of medical indication on June 21, 2023, confirming the medical necessity for them to pursue surrogacy. The couple and the surrogate mother subsequently approached a trial court in Thiruvananthapuram, which granted orders regarding the custody and parentage of the proposed child on May 3, 2025.
However, when the couple formally applied to the state surrogacy board for an eligibility certificate on May 27, 2025, the authority rejected the request because the husband had crossed 55 years of age.
Arguments over Timing and Constitutional Rights
Appealing the single-judge dismissal, Senior Advocate Sanal Kumar S, representing the couple, submitted that the age restriction should not be applied retrospectively to disrupt a reproductive process that had already made substantial progress.
Counsel argued that the relevant baseline date for evaluating eligibility under the statute should be when the procedure commenced rather than when the regulatory certificate was issued. It was further argued that enforcing the age bar at the stage of certification created an unreasonable classification in violation of Article 14 and infringed upon Article 21 guarantees regarding personal liberty, drawing comparisons between provisions of the Surrogacy Act and the Assisted Reproductive Technology (Regulation) Act.
Senior Advocate A Sreekala appeared for the state government and the surrogacy board.
Court Findings on Legislative Scope
Countering the appeal, Deputy Solicitor General O M Shalina, appearing for the Union Ministry of Health and Family Welfare, argued that the designated authority is legally mandated to examine an applicant’s age on the actual date an eligibility certificate is issued. The central government stressed that surrogacy steps cannot legally proceed before fulfilling statutory conditions, highlighting that the Surrogacy Act came into effect in January 2022, whereas the couple’s embryos were preserved in August 2022 without first securing the mandatory eligibility certificate.
The division bench agreed with the statutory authorities, ruling that the couple’s situation could not be categorised alongside procedures initiated prior to the law’s enactment, since their treatment and preservation occurred after the statute was already operational.
Addressing arguments contrasting the Surrogacy Act with the Assisted Reproductive Technology Act, the court ruled that the two statutes carry distinct objects, reasons, and policy intents. The bench noted that legal terms and principles from one framework cannot be conflated with the other, ultimately finding no merit in the challenge and dismissing the appeal.
