The Division Bench of Justice K. Natarajan and Justice Johnson John dismissed an appeal filed by an intending couple challenging the Single Bench's dismissal of their plea challenging the age limits prescribed by the Act:

“we find that the age restriction in the Surrogacy Act is based on a reasonable relationship with the required aim sought to be achieved by the law and therefore, we find that the contentions of the learned counsel for the appellants in this regard are not legally sustainable.”

It also found that age of eligibility is as on the date of certification by the appropriate authority under the Act, whether or not the couple were in the permissible age limit at the time when the embryos were frozen or the procedure commenced:

“The learned counsel for the appellants argued that at the time when the fertilised embryos were kept frozen, the appellants were within the age limit prescribed under the Surrogacy Act. But, admittedly, the appellants have not obtained the eligibility certificate under Section 4(iii)(c)(I) of the Surrogacy Act before the commencement of the surrogacy procedure and for the purpose of eligibility certificate, the age as on the day of certification is crucial and therefore, the contention of the learned counsel for the appellants cannot be accepted.”

The appellants were a married couple who commenced their surrogacy procedure in 2022 when the husband was below 55 years. They took treatments and successfully cryopreserved their embroys on 30.08.2022. On 21.06.2023, the District Medical Officer issued them a certificate of medical indication certifying the medical necessity to resort to surrogacy.

Subsequently, on 03.05.2025, the appellants and the surrogate mother obtained orders from the Magistrate regarding parentage and custody of the child proposed to be born through surrogacy. On 27.05.2025, the appellants approached the Kerala State Assisted Reproductive Technology and Surrogacy Board for eligibility certificate as per Section 4(iii)(c)(I) of the Act but the same was denied since the husband had crossed the upper age limit.

The appellants argued that the age limits under the Act could not applied retrospectively to defeat the reproductive procedure that already commenced and substantially progressed. Further, it was contended that the crucial date for determining eligibility was when the reproductive procedure commenced.

The respondents argued that the couple's reproductive procedure started after the commencement of the Act, which commenced on 25.01.2022. Moreover, the appropriate authority under the Act is required to consider the couple's age on the date of issuance of eligibility certificate and procedures cannot be conducted before satisfying all the conditions under Section 4(iii), which contemplates eligibility certificate for surrogate mother as well as the intending couple.

The Court examined Section 4 of the Act as well as a decision in XXX and Anr. v. Union of India and Ors., Rajitha v. Union of India and Vijaya Kumari S. & Another v. Union of India. It then opined that the age as on date of eligibility certification is relevant as per the Act.

The Court further rejected the appellants' contention that the age restriction was operated retrospectively since the surrogacy procedure, i.e., the freezing of embryos, was started after the Act commenced.

It also refused to accept the appellants' attempt to compare the Assisted Reproductive Technology (Regulation) Act, 2021 with the Surrogacy Act:

“It is pertinent to note that the objects and reasons behind the Surrogacy Act and the Act, 2021 are different and it is well settled that the interpretation of phrases in one statute should not be conflated with interpretations from another, especially when the wording, policy and legislative intent differ.”

Thus, it dismissed the appeal.

Case No: WA No. 1318 of 2026

Case Title: X and Anr. v. Union of India and Ors.

Citation: 2026 LiveLaw (Ker) 494

Counsel for the appellants: T.J. Seema, Bhavana Velayudhan, S. Sanal Kumar (Sr.)

Counsel for the respondents: Jolima George – CGC, O.M. Shalina - Deputy Solicitor General of India, A. Sreekala - Sr. Government Pleader

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