Delhi High Court Allows Couple To Proceed With Surrogacy Despite Husband Crossing Statutory Age Bar

The Delhi High Court has permitted an intending couple to move ahead with surrogacy procedure, despite the husband being above the maximum age limit prescribed under the Surrogacy (Regulation) Act, 2021.

Justice Sachin Datta noted that since the couple initiated the surrogacy procedure prior to enforcement of the enactment, the age bar under Section 4(iii)(v)(c)(I) shall not be applicable to them.

The provision mandates age restrictions for intending couples seeking surrogacy. It states that the woman must be between 23 and 50 years, whereas the man must be between 26 and 55 years.

The Court was dealing with the couple's plea, wherein the husband was aged 57 years and the wife 42 years old.

It was their case that after multiple unsuccessful attempts at conception, including through IVF, they were advised by medical practitioners to pursue surrogacy as the only feasible option to achieve parenthood.

The couple contended that since the husband had crossed the upper age limit, he was rendered ineligible for the surrogacy procedure.

It was submitted that the disqualification had operated to the detriment of the couple, despite the fact that they initiated the process as far back as on January 06, 2021, prior to the commencement of the Act, which came into force on January 25, 2022.

It was submitted that a rigid application of Section 4(iii)(v)(c)(I) of the Act was discriminatory, arbitrary and infringes upon their fundamental right to reproductive autonomy.

Allowing the plea, the Court observed:

“ In light of Vijaya Kumari S (supra), and considering that the petitioners initiated the surrogacy procedure prior to the enforcement of the Act, this Court is of the view that Section 4(iii)(v)(c)(I) of the Act shall not be applicable to the petitioners herein.”

It allowed the couple to move forward with the surrogacy process, notwithstanding the age of the husband.

“The petitioners are exempted from seeking the eligibility certification, provided they satisfy all other applicable conditions under the Act and the Surrogacy (Regulation) Rules, 2022,” the judge directed.

Title: TAPAS KUMAR MALLICK & ANR v. UNION OF INDIA & ANR

Citation: 2025 LiveLaw (Del) 1419

Click here to read order