Calcutta High Court Directs State To Grant Surrogacy Eligibility Certificate To Couple Who Crossed Age Limit After Starting ART Process
The Calcutta High Court has directed the West Bengal government to issue an eligibility certificate under the Surrogacy (Regulation) Act, 2021 to a married couple who crossed the statutory age limit after initiating fertility treatment, holding that they should not be denied parenthood after already undergoing the Assisted Reproductive Technology process and successfully cryopreserving embryos.
Justice Raja Basu Chowdhury observed that where the petitioners had commenced the process within the permissible age bracket and had already undergone extensive medical procedures, they should be given an opportunity to become parents.
“The petitioners should not be made to suffer and should be given an opportunity to become parents especially when the embryo has been successfully cryopreserved and that there is a fair chance that it shall result in successful pregnancy,” the Court held.
The petitioners claimed to have married according to Hindu rites on February 21, 2019, with the marriage later registered on May 13, 2025. They stated that despite serious attempts, the wife was unable to conceive naturally. They thereafter consulted infertility specialists and underwent IVF treatment, but without success.
Subsequently, they decided to pursue gestational surrogacy and on May 26, 2025 applied before the Chief Medical Officer of Health and Chairman of the District Medical Board, Darjeeling, seeking a Certificate of Medical Indication under the Surrogacy Act.
According to the petitioners, at the time of making the application, the wife was within the permissible age limit prescribed under the law, while the husband was only marginally above the age threshold.
The certificate of medical indication was later issued, following which ovum pick-up was conducted on November 29, 2025 and embryos were cryopreserved on December 16, 2025. A fertility centre certified that two embryos were in good condition and had a fair chance of resulting in successful pregnancy if transferred to a surrogate mother.
However, their application for issuance of an eligibility certificate under Regulation 4(c) of the Surrogacy Act remained pending before the Health Secretary from February 5, 2026. The State opposed the plea on the ground that the intending couple had crossed the eligibility age and that authorities had no power to relax the statutory age requirement.
The Court noted that the age limit flows from the Central legislation and acknowledged that the wife had crossed the upper age limit by the time the eligibility certificate was being considered. However, it emphasised that when the initial application was made, she was still within the prescribed age.
The Court also took into account the medical evidence showing that eggs had been successfully retrieved and embryos cryopreserved, indicating that the fertility process had substantially progressed.
Justice Chowdhury referred to earlier coordinate bench rulings in Shyamoli Saha & Anr. v. State of West Bengal & Ors. and Sanchita Ghosh & Anr. v. Union of India, where similar relief had been granted to couples who crossed the age limit during the ART process.
Holding that the present case stood on a similar footing, the Court concluded that the petitioners should be permitted to avail Assisted Reproductive Technology Services and complete the surrogacy process. Thus, the Court directed that an eligibility certificate be issued to the petitioners within seven working days.
Case Title: Sangita Raha & Anr. v. State of West Bengal & Ors.
Case No.: WPA 481 of 2026