Kerala High Court upholds surrogacy age limit, denies eligibility certificate to couple

Justices K Natarajan and Johnson John observed that the couple’s surrogacy procedure had commenced before the Surrogacy Act came into force.

The couple claimed that they had started the surrogacy process during the year 2022 and at that time, the husband was below the upper age limit of 55 years. It came on record that after the treatment, the embryos were successfully fertilised and cryopreserved on August 30, 2022.

According to the couple, on June 21, 2023, the district medical officer, Thiruvananthapuram, issued them the certificate of medical indication for intending couples, certifying the medical necessity for resorting to surrogacy; therefore, the couple was eligible to proceed with the surrogacy process under the law.

The couple, along with the surrogate mother, filed a case before the trial court in Thiruvananthapuram seeking orders for parentage and custody of the child proposed to be born through the surrogacy arrangement. On May 3, 2025, the trial court allowed the couple’s plea.

On May 27, 2025, they approached the Kerala State Assisted Reproductive Technology and Surrogacy Board for an eligibility certificate under the Surrogacy (Regulation) Act, which was denied because the husband had crossed the prescribed age limit. The couple filed a civil case in the high court against the decision of the surrogacy board, where the plea was dismissed on June 1, 2026, and they hence filed the appeal.

‘Unreasonable classification’

Senior Advocate Sanal Kumar S, appearing for the couple, argued that the age restrictions under the law could not be applied in a way that “retrospectively defeats a reproductive procedure which had already substantially progressed”.

The counsel contended that the previous judge failed to examine the fact that whether the relevant date for deciding eligibility under the law was the date on which the reproductive procedure had started or the date on which the eligibility certificate was issued. The counsel also argued that the interpretation of the law followed by the previous judge resulted in an “unreasonable classification” that offended Article 14 (equality before law) of the Constitution.

Deputy Solicitor General O M Shalina, representing the Ministry of Health and Family Welfare, argued that the appropriate authority under the law was required to consider the age of the couple on the date of issuance of the eligibility certificate and that surrogacy procedures cannot be conducted before satisfying all the conditions.

The counsel also submitted that the Surrogacy Act came into force from January 2022 and the embryos of the couple were kept frozen in August 2022. Therefore, the surrogacy proceedings began after the law came into force and were started without obtaining the eligibility certificate from the appropriate authority. Senior Advocate A Sreekala appeared for the state of Kerala and the surrogacy board.

‘Embryos frozen after law enacted’

The high court noted that the case of the couple could not be included in the category of those cases where the surrogacy procedure began before the law was enacted, as the couple had started their procedure and the fertilised embryos were frozen after the law came into force.

The court observed that the counsel for the couple challenged the “constitutional validity” of the relevant section of the Surrogacy Act on the ground that it was violative of Articles 14 and 21 (protection of life and liberty) of the Constitution. The court further noted that an attempt was made to “compare various provisions of the Assisted Reproductive Technology (Regulation) Act (ART Act) with the provisions in the Surrogacy Act.

According to the court, the objects and reasons behind the Surrogacy Act and the ART Act were different, and “it is well settled that the interpretation of phrases in one should not be conflated with interpretations from another, especially when the wording, policy and legislative intent differ”. Therefore, the court dismissed the couple’s plea.