A woman of 54 whose husband is 53 can now get a surrogacy eligibility certificate, the Bombay High Court has ruled, reading the Surrogacy Act alongside the Assisted Reproductive Technology Act. The Bench expressly left the validity of the statutory age limits undecided.
Mumbai: A surrogacy application rejected only because the woman had crossed the statutory upper age limit of 50 has succeeded before the Bombay High Court, which set aside the rejection and directed the Nashik Municipal Corporation’s Appropriate Authority to issue the certificate [X-1 & Anr. v. Union of India & Ors.].
A Division Bench of Justices Bharati Dangre and Ashish S. Chavan delivered the 64-page judgment on November 4, 2026, and it was uploaded on November 5. The petitioners are identified as X-1 and X-2. The woman is 54 and her husband is 53, within the prescribed upper limit of 55 for men.
The directions, and what they do not do
The Court quashed the July 14 rejection and issued a writ of mandamus directing the Appropriate Authority to issue an eligibility certificate. It declared the petitioners eligible to undergo surrogacy and held that the woman having crossed 50 would not bar their participation in the procedure, or ART if required.
Separately, it directed the District Medical Board, Nashik, to issue a certificate of medical indication if the petitioners otherwise satisfy the medical requirements under the Surrogacy Act and Rules. The medical direction is therefore conditional; the judgment does not dispense with those requirements.
The Union requested a stay to challenge the decision before the Supreme Court. In paragraph 55, the Bench rejected that request, reiterating that it had interpreted the two enactments together without determining the validity of the age-limit provision.
Years of treatment, then a refusal on age
The petitioners told the Court that prolonged infertility treatment and repeated IVF attempts had not resulted in a successful pregnancy. Following medical advice, they sought gestational surrogacy using donor eggs and the husband’s sperm.
The Appropriate Authority refused their application on July 14, 2026, because the woman was 54. Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, specifies an age bracket of 23–50 for the female partner and 26–55 for the male partner on the date of certification.
The couple sought a purposive interpretation of that provision in light of Articles 14 and 21 of the Constitution. Alternatively, they challenged an inflexible age-based disqualification that permitted no consideration of exceptional, medically supported circumstances.
The Union’s case: both spouses must fit the limits
The Union of India argued that both spouses must satisfy the prescribed limits. Additional Solicitor General Anil C. Singh submitted that the criteria reflected legislative policy and expert consideration of parental health, caregiving capacity and the long-term welfare of children.
The Union relied on an expert committee report concerning conception at advanced parental age and on decisions upholding the restrictions. Its position was that hardship in an individual case did not justify diluting the statutory conditions.
Two Acts, one framework
Senior Advocate Sharan Jagtiani, assisting as amicus curiae, proposed reading the Surrogacy Act together with the Assisted Reproductive Technology (Regulation) Act, 2021. He drew attention to High Court decisions permitting ART treatment where one spouse remained within the applicable age range although the other had crossed it.
The Bench accepted that the two enactments are allied laws forming a common regulatory framework. In paragraphs 32 and 33, it examined their overlapping procedures and institutions, including the common National Assisted Reproductive Technology and Surrogacy Board.
The Court then considered the reasoning in ART cases concerning a ‘commissioning couple’. Those decisions treated the age-related ineligibility of one spouse as insufficient, by itself, to deprive the other eligible spouse of access to treatment. The Bench applied that approach to the intending couple before it.
In paragraph 50, the Court found no reason to deny the petitioners the benefit of that reasoning when the husband remained within the statutory age bracket. In paragraph 54, it agreed with the amicus’s proposed purposive interpretation of Section 4(iii)(c)(I).
The question the Court left open
The Bench distinguished risks associated with an older woman herself carrying a pregnancy from a surrogacy arrangement in which a surrogate within the prescribed age range carries the child. It also noted that concerns about later-life parenting and caregiving apply to children born through ART as well as through surrogacy.
The Court did not reject the relevance of expert evidence or decide the general validity of age restrictions. It noted that the detailed expert report relied on by the Union was prepared in 2026 and had not formed the basis of the limits when the legislation was introduced.
In paragraph 53, the Bench expressly clarified: “we have not ruled upon the validity of the provision prescribing the maximum age limit”. It acknowledged the limited scope for judicial interference with legislative choices and left that question open.
Case Details
Case: X-1 & Anr. v. Union of India through the Secretary, Ministry of Health and Family Welfare, Government of India & Ors.
Case Number: Writ Petition No. 11143 of 2026
Court: Bombay High Court, Civil Appellate Jurisdiction
Bench: Justice Bharati Dangre and Justice Ashish S. Chavan
Judgment by: Justice Bharati Dangre
Decision Date: November 4, 2026
Neutral Citation: 2026:BHC-AS:45246-DB
Outcome: Petition allowed; eligibility rejection quashed; eligibility certificate directed; medical-indication certificate subject to compliance with medical requirements; request for stay rejected.