This judgment does not decide the validity of the age limit in Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021; the Court expressly states that it does not pronounce upon that issue. It also does not decide whether the petitioners ultimately satisfy the medical requirements for surrogacy — the District Medical Board must still examine them and issue the Certificate of Medical Indication only if they do. The Union of India sought a stay to test the decision before the Supreme Court, and the request was rejected.
- Case
- X-1 & Anr v. Union of India & Ors.
- Court
- High Court of Bombay
- Decision
- Citation
- 2026:BHC-AS:45246-DB
- Bench
- Bharati Dangre; Ashish S. Chavan
- Judgment by
- Bharati Dangre
- Case numbers
- WP 11143/2026
- Outcome
- Writ petition made absolute: the Appropriate Authority’s rejection of the Eligibility Certificate is quashed, a mandamus issues to the Authority to issue the certificate, and a mandamus issues to the District Medical Board to issue the Certificate of Medical Indication if the medical requirements are met.
The decision
The Bombay High Court has held that a 54-year-old intending mother is not barred from gestational surrogacy merely because she has crossed 50, where the other member of the couple is within the prescribed age limit. Justices Bharati Dangre and Ashish S. Chavan quashed the Authority’s rejection of the couple’s application, issued a mandamus to issue the Eligibility Certificate, and a further mandamus to the District Medical Board to issue the Certificate of Medical Indication if the medical requirements are met.
The Court adopted a purposive interpretation of Section 4(iii)(c)(I), read with the ART Act. It expressly did not decide the validity of the age limit, and it rejected the Union’s request for a stay.
Background
The petitioners, anonymised as X-1, a woman aged 54, and X-2, a man aged 53, are legally wedded spouses constituting an “intending couple” under the Surrogacy (Regulation) Act, 2021. They pleaded that they had tried to conceive naturally over a long period and had undergone multiple IVF cycles at recognised centres, without a successful pregnancy.
On 27 June 2026, an IVF specialist in Nashik recorded that, given the prolonged infertility, repeated unsuccessful IVF attempts and the intending mother’s age, pregnancy through conventional methods had become increasingly challenging, and the case deserved compassionate consideration. The petitioners then applied to the Appropriate Authority of the Nashik Municipal Corporation for an Eligibility Certificate under Section 4(iii)(c), and began the process of obtaining a Medical Indication Certificate from the District Medical Board.
On 14 July 2026 the Authority rejected the application: X-1 is 54, and under the Act the woman’s age shall not exceed 50. The petitioners challenged that rejection, invoking Articles 14 and 21.
The issue
The petitioners sought a declaration that Section 4(iii)(c)(I) must be interpreted purposively and harmoniously with the object of the Act, Rule 14 of the 2022 Rules, and Articles 14 and 21, so as to permit consideration of exceptional medically justified cases. In the alternative, they asked the Court to declare it unconstitutional to the limited extent that it mandates an inflexible age-based disqualification without room for exceptional medically justified cases.
They also sought mandamuses directing the Authority to reconsider the application and the District Medical Board to issue the Certificate of Medical Indication if they satisfy the medical requirements. The Court appointed senior advocate Sharan Jagtiani as amicus curiae, and framed two questions: whether Section 4(iii)(c)(I) prescribes absolute and inflexible age limits, or whether it suffices if one member of the couple is within the stated limits; and, if the limits are absolute, whether the provision is liable to be read down or declared unconstitutional to a limited extent.
The rule
Section 4(iii)(c)(I) prescribes, for an intending couple, the female between 23 and 50 and the male between 26 and 55, as on the date of certification. The Surrogacy Act came into force on 25 January 2022, alongside the Assisted Reproductive Technology (Regulation) Act, 2021, which regulates assisted reproductive technology clinics and banks. The two statutes share a common Board constituted under the ART Act.
The Union, represented by the Additional Solicitor General, contended that the age requirement must be satisfied by both members of the couple, because the provision is conjunctive: the couple must be married, the female between 23 and 50, and the male between 26 and 55. The requirement, on this reading, is qua the couple itself. The Union also relied on the Expert Committee’s report on the implications of conception at advanced parental age, and on the Delhi High Court’s decision in XX v. Union of India, which had treated the age bar as a legislative choice and declined to examine the medical wisdom underlying it.
The amicus drew attention to a contrast within the statute. Where surrogacy is sought by a single woman, Section 2(1)(s) provides that an “intending woman” must be between 35 and 45 years, a lower upper limit than the 50 years for a woman in an intending couple. His submission was that the higher limit for a couple reflects shared responsibility for the child’s care, so the child’s welfare is assured so long as one of the couple is within the prescribed age limit.
The reasoning
The Court was guided by the reasoning of various High Courts under the ART Act, where one member of a “commissioning couple” had crossed the maximum age limit but the other had not. The amicus cited a Gujarat High Court decision which had quashed the rejection of a commissioning couple’s eligibility for IVF, where the wife was menopausal and above 50 while the husband was 54; the Court there looked at the couple as a unit. The amicus contended that the same parameters should apply to Section 4(iii)(c)(I), since the two are allied and cognate statutes.
The Court also noted the Expert Committee Report relied on by the Union, a detailed study of the impact of age in rearing children at an advanced age. It found, however, that the report was not the basis for introducing the age bracket, the research having been carried out in 2026, and that it may guide the legislature if it wishes to bring changes. The Court did not pronounce upon the validity of the age limit, observing that a court has limited scope to interfere with legislative wisdom unless its implementation results in arbitrariness.
Adopting a purposive interpretation, the Court held that a court should adopt an interpretation which attains the object of the legislation. The Surrogacy Act is a regulatory statute, aimed at prohibiting the potential exploitation of surrogate mothers and protecting the rights of children born through surrogacy. A woman otherwise entitled to avail assisted reproductive technology, the Court reasoned, cannot be put to hardship only because she approaches the authority as part of a commissioning couple, and the same applies vice versa.
The outcome
The Court issued three directions. First, it quashed the order of 14 July 2026 by which the Appropriate Authority, Nashik Municipal Corporation, had rejected the application on the ground that petitioner No. 1 had crossed the upper age limit. Second, it issued a mandamus to the Authority to issue an Eligibility Certificate, declaring the petitioners eligible and that X-1 having crossed 50 shall not pose an embargo. Third, it issued a writ of mandamus to the District Medical Board, Nashik, to issue the Certificate of Medical Indication if the petitioners otherwise satisfy the medical requirements. The petition was made absolute in these terms.
Counsel for the Union then sought a stay to test the decision before the Supreme Court. The Court rejected the request, clarifying that it had purposively interpreted the Surrogacy Act read with the ART Act, but had not determined the validity of the age bracket.
BANTHRY ANALYSISFor law students
This judgment is a study in reading cognate statutes together. The Court did not strike down the age limit, and it did not hold that the limit is meaningless: it read Section 4(iii)(c)(I) alongside Section 21(g) of the ART Act and the decisions of other High Courts on commissioning couples, treating the couple as a unit. Notice what the Court refused to do: it would not second-guess Parliament’s choice on the Expert Committee Report, and it would not decide validity at all, because the petitioners could be given relief by interpretation alone.
READING PROMPTSQuestions for a closer reading
- What was the difference between the Union of India’s reading of Section 4(iii)(c)(I) and the petitioners’ reading, and which did the Court adopt?
- Why did the Court look to the approach taken by High Courts under Section 21(g) of the ART Act, and what did the Gujarat High Court decision cited by the amicus hold?
- What did the Court expressly refuse to decide, and what remains for the District Medical Board to assess?
