Kochi: The Kerala High Court on Friday clarified the doubts surrounding the age related restrictions for surrogacy under the Surrogacy (Regulation) Act, 2021. Referring to the section 4 (C) i of the act, Justice CS Dias stated that a female would be eligible to obtain eligibility certificate for surrogacy when she attains the age of 23 and becomes ineligible on the preceding day of her 50th birthday. The single bench declared that the court cannot extend the age limits fixed by the law.

The maximum age limit for women cannot be extended till the preceding day of the 51st birthday, since the legislature has imposed age restrictions based on the normal age that which women conceive biologically, said the court. 

As per the Section 4(c) (i), the intending couple must be between the age of 23 to 50 years old for females and between 26 to 55 years old for males on the day of certification to obtain eligibility certificate for surrogacy.

“ 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 terms 'between” and “to” used in Section 4 (c) (I) of the Act reflect a restriction indicating that a female can have a surrogate child only after attaining the age of 23 years and before completing the age of 50 years, with a similar restriction for males aged between 26 to 55,” said Justice Dias.

The court made the renouncement while considering plea of 46-year-old woman and her 52-year-old husband who were unable to conceive a child after several cycles of treatment using Assisted Reproductive Technology. The petitioners approached Kerala State Assisted Reproductive Technology and Surrogacy Board to obtain an eligibility certificate under Section 4(c) of the Surrogacy (Regulation) Act of 2021. The couple who is eligible to pursue surrogacy has identified a surrogate mother.

The petitioners were orally informed that they were ineligible for surrogacy since the wife has crossed the age limit. This is because the school admission register of the wife shows that she was born in 1974, meaning that she has already completed the age of 50 years.

During the hearing, the petitioners’ counsel argued that the woman is eligible till the previous day of attaining 51 years. Relying upon Apex court directions, the government pleader argued that the submitted persons would have been considered to have attained the specified age on the day before the birthday.

The Court referred to Section 4 of the Majority Act to state that a person was deemed to have attained majority at the start of his 18th anniversary day. Further relying upon Apex Court decisions, the Court stated that a person would attain 18 years on the day preceding of his 18th birthday anniversary.

The HC dismissed the writ petition observing that the Board has rightly concluded that the wife was ineligible since she has attained the age of 50 years. 
(with Live Law inputs)