'Motherhood Is A Fundamental Aspect Of Life': Kerala HC Says Intending Women Would Be Eligible To Opt For Surrogacy Till They Turn 51 Yrs Old

The Kerala High Court has ruled that an intending woman is eligible for surrogacy throughout the age of 50 years, and her eligibility ceases only when the intending woman turns 51.The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu thus overturned the decision of single bench in Rajitha P V v Union of India (2025), which held that an intending woman would be eligible for surrogacy when she attains the age of 23 and ceases to be eligible on the preceding day of her 50th birthday.In reaching its conclusion, the Division Bench interpreted Section 4(c) (i) of the Surrogacy (Regulation) Act, 2021 which stipulates that the intending couple must be between the age of 23 to 50 years old for females and between 26 to 55 years old for males on the day of certification to obtain eligibility certificate for surrogacy. The Court also relied on Section 9 of the General Clauses Act, 1897, emphasizing the significance of the word 'to' in the prescribed age range to support its interpretation.The Division Bench observed thus: “Motherhood is a deeply personal and fundamental aspect of life. Any interpretation that results in depriving someone of it permanently has to be approached with caution. 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….Therefore, the impugned judgment and order are required to be set aside, and the writ petition needs to be allowed. In the light of this discussion, we hold that since, under Section 4(iii)(c)(I) of the Act of 2021, the eligibility of intending woman to avail of surrogacy services extends throughout the 50th year, ceasing on the day the intending woman turns 51, Petitioner No. 1 is eligible for a certificate under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021, until 21 June 2025.”The writ appeal was filed challenging the order of the single judge which held that maximum age limit for female cannot be extended till the preceding day of the 51st birthday. In the facts of the case, the intending woman was denied eligibility certificate since her school admission records showed that she attained 50 years.The Court stated that 'to' is used in 1897 Act, which means that the legislation intends to include the last day in the series of days. It means that when Section 4(c) (i) of the 2021 Act stipulates that intending woman must be between the age of 23 to 50 years old for females, the legislation intends to include throughout the age of 50 years, till she turns 51 years old. Court said, “The wording in Section 4(iii)(c)(I) of the Act of 2021 is significant. The statute specifies the age range as “between the age of 23 to 50 years”. The word “between” generally signifies a continuous range rather than isolated points. If the Legislature had intended to exclude 50 as well, it would have used a different phrase instead of “to”, which has a uniform and standard meaning under Section 9 of the Act of 1897, such as “up to but not including 50” or “below the age of fifty”, as used in other statutes. Thus, the prefix “to” is used before the last number when a clear legislative intention emerges.”The Division Bench stated that the single judge should not have relied upon the Indian Majority Act of 1875 since each statue is enacted for a different purpose and relying upon unrelated legislation may lead to unintended consequences. It further held that even the the Juvenile Justice (Care and Protection of Children) Act of 2015 cannot be invoked in this context since interpretation of age related provisions in a statute depends upon the legislative intent, the subject matter, and the language in each statute. Further, the Court also stated that there is clear difference in the age eligibility criteria between the Assisted Reproductive Technology (Regulation) Act of 2021 and the Surrogacy (Regulation) Act 2021. Court said, “There is a clear difference in the age eligibility criteria in the two enactments. The ART Act, 2021, uses the phrase “below the age of fifty years”, while the Act of 2021 uses the phrase “to 50 years”. The difference in language between these two Acts indicates a legislative intent to distinguish between the two forms of conception. This distinction may exist because, in ART procedures, there are medical risks associated with invasive reproductive procedures for the intending mother, whereas in surrogacy, the primary concern for the intending mother is the emotional aspect of parenthood.”Further, the Court stated that when a range between two numbers is provided, common understanding generally includes both numbers. It thus stated that 50 years is included and 51 years is outside of that range. The Court stated that Act of 2021 should not be arbitrarily interpreted to deny opportunities for intending couples. As such, the Court stated that the intending couple is eligible to obtain the eligibility certificate for surrogacy....

'Motherhood Is A Fundamental Aspect Of Life': Kerala HC Says Intending Women Would Be Eligible To Opt For Surrogacy Till They Turn 51 Yrs Old

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