Bombay High Court: Surrogacy Wife Age Not Sole Bar if Husband Eligible

• The Bombay High Court ruled that a couple cannot be denied surrogacy solely because the wife is over 50 if the husband is within the permissible age.
• Justices Bharati Dangre and Ashish Chavan quashed a Nashik Municipal Corporation order that rejected an eligibility certificate for a 54-year-old woman and her 53-year-old husband.
• The civic body had cited Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which sets the wife's age limit between 23 and 50.
• The Court observed that an intending couple acts as a composite unit and the age disqualification of one spouse cannot penalize the other.
• The ruling affirmed that the right to make reproductive choices is a facet of personal dignity enshrined in Article 21 of the Constitution.

Crucially, the court affirmed that the right to make reproductive choices is a fundamental aspect of personal dignity, explicitly enshrined under Article 21 of the Constitution.

The Bombay High Court recently issued a significant ruling concerning surrogacy eligibility, determining that a couple cannot be denied access to surrogacy solely because the wife has surpassed the statutory age limit of 50 years, provided her husband remains within the permissible age bracket. This decision by a bench comprising Justices Bharati Dangre and Ashish Chavan effectively overturned an order from the Nashik Municipal Corporation. The civic body had previously rejected an application for an India surrogacy eligibility certificate from a 54-year-old woman and her 53-year-old husband.

The couple had sought gestational surrogacy following extensive and unsuccessful in vitro fertilization (IVF) cycles, a recommendation made by medical specialists. The Nashik Municipal Corporation's rejection was based on a strict interpretation of the Surrogacy (Regulation) Act, 2021, specifically citing the age criteria outlined in the legislation. This ruling by the Bombay High Court on the surrogacy wife age limit provides crucial clarity for couples navigating the complex landscape of reproductive assistance in India.

The Surrogacy (Regulation) Act, 2021, establishes specific age requirements for intending couples seeking surrogacy. According to Section 4(iii)(c)(I) of the Act, the woman in a couple must be between 23 and 50 years old, while the man must be between 26 and 55 years old. It was this particular provision that the Nashik Municipal Corporation invoked when denying the couple their eligibility certificate, as the wife was 54 years old, exceeding the stipulated upper limit.

The Union government, in its defense of these age restrictions, referenced an expert committee report. This report highlighted concerns regarding reduced caregiving capacities and potential health risks associated with advanced parental age. Despite these legislative and governmental justifications, the Bombay High Court surrogacy wife age ruling challenged the rigid application of these age limits when one partner falls outside the specified range but the other does not.

In its detailed reasoning, the High Court emphasized that an intending couple should be viewed as a "composite unit." Consequently, the age-related disqualification of one spouse should not automatically penalize the other, especially when the latter meets the legal requirements. This perspective underscores a more holistic approach to assessing eligibility for surrogacy.

Crucially, the court affirmed that the right to make reproductive choices is a fundamental aspect of personal dignity, explicitly enshrined under Article 21 of the Constitution. The Justices Dangre Chavan surrogacy ruling stressed that this constitutional right must be applied with full force, necessitating a progressive interpretation of laws that aligns with international norms and evolving societal dynamics. This interpretation ensures that the spirit of fundamental rights is upheld in the context of reproductive assistance.

This landmark decision by the Bombay High Court carries significant implications for future applications for an India surrogacy eligibility certificate. It sets a precedent that challenges a narrow, literal reading of the Surrogacy Regulation Act 2021 age limit, particularly when it comes to the wife's age. Lawyers advising clients on reproductive rights and surrogacy in India must now consider this ruling, which clarifies that a couple cannot be denied surrogacy solely because the wife exceeds the 50-year age limit if the husband is within the permissible age.

The ruling reinforces the constitutional right to reproductive choices, providing a strong basis for challenging rejections of eligibility certificates that are based on a strict interpretation of Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. By emphasizing the couple as a composite unit and the progressive interpretation of fundamental rights, the court has opened avenues for a more nuanced and equitable application of surrogacy laws in the country.

Lawyers advising clients on reproductive rights and surrogacy in India must be aware of this Bombay High Court ruling, which clarifies that a couple cannot be denied surrogacy solely because the wife exceeds the 50-year age limit if the husband is within the permissible age. This provides a strong precedent for challenging rejections of eligibility certificates based on a strict interpretation of Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, and reinforces the constitutional right to reproductive choices.

Source: Original reporting via legal news source