‘A woman can’t be denied the opportunity to become a mother’: HC allows 54-year-old woman to pursue motherhood via surrogacy

A division bench of justices Bharati Dangre and Ashish S Chavan on Wednesday observed that the eligibility criteria under the law must be interpreted positively by considering the intending couple as a “composite unit” and they “should not be put in a disadvantageous position” because one spouse has crossed the age limit

MUMBAI: The Bombay High Court has allowed a 54-year-old woman to pursue motherhood through surrogacy even though the Surrogacy (Regulation) Act, 2021 caps the intending mother’s age at 50 years, ruling that a woman cannot be denied the fundamental right to motherhood solely based on the statutory age limit under the law.

‘A woman can’t be denied the opportunity to become a mother’: HC allows 54-year-old woman to pursue motherhood via surrogacy

A division bench of justices Bharati Dangre and Ashish S Chavan on Wednesday observed that the eligibility criteria under the law must be interpreted positively by considering the intending couple as a “composite unit” and they “should not be put in a disadvantageous position” because one spouse has crossed the age limit.

The judges quashed the Nashik Municipal Corporation’s order rejecting the couple’s application for a surrogacy eligibility certificate and directed the civic body to issue the same. It also directed the Nashik District Medical Board to issue a certificate of medical indication if the woman and her 53-year-old husband satisfy the medical requirements prescribed under the law.

The couple had moved the high court after the Nashik Municipal Corporation on July 14 rejected their application for a surrogacy eligibility certificate solely because the woman was 54, exceeding the prescribed upper age limit of 50 under the Act. They told the court that they had made serious and continuous efforts to conceive naturally, but the prolonged attempts had remained unsuccessful. They had consulted qualified infertility specialists and undergone Assisted Reproductive Technology (ART) procedures, including multiple cycles of In Vitro Fertilisation (IVF) at recognised fertility centres, but these treatments did not result in successful clinical pregnancy, they said.

The central government, however, opposed any relaxation of the age criteria, arguing that fixation of the upper age limit for men and women was purely a technical matter, decided after consultation with experts and much deliberation. Additional Solicitor General Anil Singh said the prescription of the maximum age limit is to balance the interests of the parents and the child. “The rights and welfare of the unborn child should not be neglected in the process of fulfilling the desire of a couple to become parents,” he said.

The court noted that the right to make reproductive choices “must operate with full force to ensure that every couple or individual woman can avail the reproductive rights to its fullest” by addressing the societal and systematic barriers in its way. It noted that the psychological and caregiving implications of advanced parental age applies with equal force to a child born out of surrogacy or a child born through the use of assisted reproductive technology.

The court further said that it “fails to understand” how the age limit can be made applicable only to a child born through surrogacy, and not to a child born through the use of ART techniques, after noting that in cases involving ART, courts had adopted an approach of considering the couple as a composite unit, and permitting treatment where one spouse had crossed the age limit but the other remained eligible.

Allowing the petition, the bench clarified that it was not deciding the constitutional validity of statutory age restrictions.

“Whenever such a challenge is faced, all the relevant aspects, including the study of the impact of age in rearing children at advanced age will receive due consideration,” the court said.