Read Time: 07 minutes

Synopsis

The Kerala High Court has ruled that a woman is ineligible to obtain an eligibility certificate for surrogacy upon attaining the age of 50 years.

The court, presided over by Justice C.S. Dias, emphasised that the maximum age limit for surrogacy cannot be extended beyond the preceding day of a woman’s 50th birthday, as stipulated under Section 4(c)(i) of the Surrogacy (Regulation) Act, 2021. It observed: “there is no doubt that a female who attains the age of 23 would become eligible to have a surrogate child and becomes ineligible on the preceding day her 50th birthday anniversary.”

The petitioners, a 46-year-old woman and her 52-year-old husband, had undergone multiple unsuccessful attempts to conceive through Assisted Reproductive Technology (ART). Seeking surrogacy as an alternative, they approached the Kerala State Assisted Reproductive Technology and Surrogacy Board for an eligibility certificate under Section 4(c) of the Act. However, the Board orally informed them that the wife was ineligible since her school admission register indicated that she was born in 1974, meaning she had already turned 50.

However, the petitioners contended that the woman remained eligible for surrogacy until the day before she turned 51. Relying on Section 9 of the General Clauses Act, they argued that the terms “between” and “to” in Section 4(c)(i) of the Surrogacy Act implied that a person remains in a given age category until the preceding day of their next birthday.

Relying on Supreme Court judgments in Tarun Prasad Chatterjee v. Dinanath Sharma and Shashikala and others v. Gangalakshmamma and another, the petitioners asserted that age computation should be interpreted in a way that benefits the individual.

Taking into consideration Section 9 (1) of the General Clauses Act, the court stated, “A careful examination of the above provision reveals that it pertains to the commencement and termination of time rather than the calculation of age.”

The court also referred to Section 4 of the Indian Majority Act, 1875, which states that a person attains the specified age at the start of their birthday anniversary. Relying on Supreme Court precedents, including Earati Laxman v. State of Andhra Pradesh, it reaffirmed that a person is deemed to attain a particular age on the day before their birthday.

The court observed that if the petitioners’s argument were accepted, the minimum and maximum age limits for surrogacy would shift beyond the intended legislative framework, affecting other statutory age restrictions as well. “The law has, therefore, crystallised that a person attains a specified age on the day preceding his birthday anniversary,” the court remarked.

Rejecting the petitioners’ interpretation, the court clarified that “It is not for this Court to extend the age limits fixed by the legislature by exercising its extra-ordinary jurisdiction. It is reasonable to presume that the legislature has imposed these age restrictions, considering the normal age that women conceive a biological child.”

In conclusion, the court upheld the Board’s decision and dismissed the writ petition, affirming that the woman was ineligible for an eligibility certificate under the Surrogacy (Regulation) Act.

 

Cause Title: Rajitha P.V. v. Union of India [WP(C) No. 403 of 2025]

Appearance: Counsel for Petitioners- Advocates Adithya Rajeev, S. Parvathi, Safa Navas; Counsel for Respondents- Advocate R.V. Sreejith, Deputy Solicitor General of India