Surrogacy After 50: Bombay High Court Recognises the Couple's Collective Age
A wife above 50 is no longer automatically shut out of surrogacy if her husband is within the statutory age bracket, the Bombay High Court has ruled. India's surrogacy law fixes rigid age limits for intending couples: 23 to 50 for the wife and 26 to 55 for the husband. Appropriate Authorities have applied these limits mechanically, rejecting any couple in which either spouse falls outside the bracket. For many couples who turn to surrogacy only after years of failed IVF, that rule has closed the door at the very point it becomes their last option.
In a significant ruling, a Division Bench of Justice Bharati Dangre and Justice Ashish S. Chavan has held that the collective age of the couple may be considered. Reading the Surrogacy (Regulation) Act, 2021 together with the Assisted Reproductive Technology (Regulation) Act, 2021, the Court directed the Nashik authority to issue an Eligibility Certificate to a couple aged 54 and 53. It also refused the Union's request to stay its judgment pending an appeal to the Supreme Court.
The regulatory framework
Surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021, the Surrogacy (Regulation) Rules, 2022 and, wherever embryos are created, the ART Act. Only altruistic, gestational surrogacy is permitted, and only on a medical indication. Both Acts came into force on 25 January 2022 and share a common National Board.
The Surrogacy (Regulation) Act, 2021
No surrogacy procedure can begin until the Appropriate Authority has issued three certificates under Section 4(iii). The first is a certificate of essentiality for the intending couple under Section 4(iii)(a). It requires a proven medical indication certified by the District Medical Board, a parentage and custody order from a Magistrate's court, and 36 months' insurance cover for the surrogate mother.
The second is an eligibility certificate for the surrogate mother under Section 4(iii)(b). She must be an ever-married woman with a child of her own, aged 25 to 35, medically and psychologically fit, and may act as a surrogate only once. The third is an eligibility certificate for the intending couple under Section 4(iii)(c). The couple must be married, with the wife aged 23 to 50 and the husband 26 to 55 on the date of certification. They must have no surviving child, subject to limited exceptions, and meet any further conditions set by regulations. The age clause in Section 4(iii)(c)(I) was the provision in issue before the Bombay High Court.
The Surrogacy (Regulation) Rules, 2022
Rule 14 lists the medical indications that allow a woman to opt for gestational surrogacy. These include an absent or abnormal uterus, repeated failure of IVF or ICSI, recurrent pregnancy loss, and an illness that makes pregnancy impossible or life-threatening. Because repeated IVF failure is itself an indication, the Rules assume that couples will usually reach surrogacy through ART. The Rules have been amended on the use of donor gametes. A March 2023 amendment to
Form 2 required both gametes to come from the intending couple. The Surrogacy (Regulation) Amendment Rules, 2024, notified on 21 February 2024, now allow one donor gamete where the District Medical Board certifies that either spouse has a medical condition requiring it.
The ART (Regulation) Act, 2021
Section 21(g) of the ART Act permits ART services only to a woman above the legal age of marriage and below 50, and a man above the legal age of marriage and below 55. Every surrogacy involves an ART procedure, so a couple must in practice satisfy both statutes.
The case before the Court
The petitioners, a married couple identified as X-1 (wife, 54) and X-2 (husband, 53), had undergone several unsuccessful IVF cycles. Their IVF specialist in Nashik recommended gestational surrogacy, and they applied to the Appropriate Authority of the Nashik Municipal Corporation for an Eligibility Certificate under Section 4(iii)(c). On 14 July 2026, the Authority rejected the application on a single ground: the wife was above 50. The couple approached the High Court under Articles 14 and 21 of the Constitution. They asked the Court to read the age clause purposively or, in the alternative, to declare it unconstitutional to the extent that it admits no flexibility. On 1 September 2026, the Court appointed Senior Advocate Sharan Jagtiani as amicus curiae. Advocate Utkarsh R. Pondkule appeared for the petitioners, and Additional Solicitor General Anil C. Singh for the Union of India. The Union defended the limit on the strength of the Parliamentary Select Committee report, the views of the National Board, and an Expert Committee report on advanced parental age. It also relied on rulings of the Delhi and Kerala High Courts that had declined to disturb the age restriction.
The Court's reasoning
Two statutes, one code The Bench began by treating the Surrogacy Act and the ART Act as allied and cognate statutes forming a single code. Both came into force on the same day and are administered through a common Board. More fundamentally, surrogacy cannot happen without assisted reproduction, even for the surrogate mother.
The Court found support in Rule 14 of the Surrogacy Rules. A woman may opt for surrogacy after repeated failure of IVF or ICSI, which are themselves assisted reproductive techniques. In the Bench's words, the two statutes "are to be read together". Carrying the ART principle across Once the statutes were read together, the Court turned to how other High Courts have applied Section 21(g) of the ART Act. In Sanchita Ghosh v. Union of India and later cases, the Calcutta High Court treated the commissioning couple as a unit and allowed treatment where one spouse was within the age limit. The Bench saw no reason why the same principle should not apply to an intending couple under the Surrogacy Act. It therefore read Section 4(iii)(c)(I) purposively: the wife crossing 50 does not bar the couple where the husband remains within the permitted bracket.
The Union's justification
The Court was not persuaded that the age limit rested on a firm scientific footing. It noted that no scientific study supported the limit when the Bill was introduced, and that the Expert Committee report relied on was dated only 21 January 2026. The report's concerns centred on caregiving, emotional availability and the need for stable guardianship over two decades. The Bench observed that these concerns apply equally to a child born through ART. It could not see how they justified barring surrogacy alone while ART remained open to such couples.
Relief granted and what remains open
The Court quashed the order of 14 July 2026 and issued a writ of mandamus directing the Appropriate Authority to grant the Eligibility Certificate. It declared that the wife having crossed 50 would not stand in the way of surrogacy or, if required, the associated ART procedure. The District Medical Board, Nashik, was directed to issue the Certificate of Medical Indication, provided the medical requirements are otherwise satisfied.
Two limits on the ruling deserve emphasis. First, the Court expressly declined to rule on the constitutional validity of the age limit; the judgment is an exercise in interpretation, not a strike-down. Second, the Union has signalled a challenge before the Supreme Court. The Bench refused to stay its judgment, so it remains operative for now.
The wider judicial landscape
The Bombay ruling appears to be among the first to carry the ART "couple as a unit" reasoning across to the Surrogacy Act where the wife herself is over 50. It builds on a line of decisions that have softened the age limits at the edges, while other courts have declined to intervene.
The Calcutta High Court has led on the ART side. In Sanchita Ghosh v. Union of India (April 2024), it held that a clinic must provide treatment where either spouse is within the Section 21(g) limit. In Sangita Raha v. State of West Bengal (April 2026), it ordered a surrogacy Eligibility Certificate for a couple who crossed the limit after beginning ART. The Supreme Court addressed a narrower question in Arun Muthuvel v. Union of India (October 2025). It held that the age bar does not apply to couples who had frozen embryos before 25 January 2022, without ruling on the validity of the limit itself. On the other side, the Delhi High Court in February 2024 declined to interfere with the surrogacy age limit, deferring to medical science. The Kerala High Court in 2023 flagged the need for a relook at the ART cap but did not intervene, and a Gauhati High Court Division Bench upheld the ART limit in 2025, as ThePrint has reported. A separate Bombay High Court bench is also hearing a direct constitutional challenge to Section 21(g) by two women aged 53 and 55. With the Union signalling an appeal in the present case, the Supreme Court is likely to have the final word.
Implications for intending couples and fertility clinics
The ruling binds Appropriate Authorities within the Bombay High Court's jurisdiction, covering Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu. Elsewhere it carries persuasive value, and couples refused on similar facts now have a reasoned Division Bench judgment to rely on.
For intending couples, a rejection based only on one spouse's age is no longer the end of the road. The strength of a case will depend on the record: documented IVF or ICSI failures, a specialist's recommendation for surrogacy, and the other spouse's eligibility. The medical gatekeeping remains intact, since the District Medical Board must still certify the indication. Relief has so far come through writ petitions, so couples should be prepared to approach the High Court promptly if refused.
For ART clinics and surrogacy centres, the ruling calls for careful advice rather than a change in practice. Clinics should not treat an age-based rejection as final when counselling patients, and should refer them for legal review early, as time is critical at this age. Thorough documentation of medical indications, previous cycles and counselling will decide both certificate applications and court cases. Any procedure for an over-age patient should proceed only on the strength of a court order kept on the patient's file, and clinics should track any appeal, stay or amendment to the Rules.
Conclusion
The Bombay High Court has not abolished the age limit, but it has refused to apply it in a way that defeats the purpose of the law. By reading the Surrogacy Act and the ART Act as a single code, the Court has brought surrogacy into line with the more flexible approach already taken under the ART Act. Until the Supreme Court speaks, the judgment offers a clear path for couples in which only one spouse has crossed the limit.