Woman Becomes Eligible For Surrogacy At 23 Years Age And Ineligible On The Preceding Day Of Her 50th Birthday: Kerala HC Clarifies

Section 4(c) (i) states that 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.

The single bench of Justice C.S. Dias also stated that the Court cannot extend the age limits fixed by the legislature by exercising its extra-ordinary jurisdiction.

“…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.”

Referring to the high court's decision in Jaison V. George v. State of Kerala (2019) where the court had said a person would attain 18 years on the day preceding his 18th birthday anniversary Justice Dias said, “The law has, therefore, crystallised that a person attains a specified age on the day preceding his birthday anniversary.”

The petitioners, 46 years old wife and is 52 year old husband, after several cycles of treatment using Assisted Reproductive Technology were unable to conceive a child. They were eligible to pursue surrogacy and have identified a surrogate mother.

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 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.

The Counsel for Petitioner submitted that the wife is eligible till the previous day of attaining 51 years. Relying upon Section 9 General Clauses Act, it was argued that inclusion of the terms 'to' and 'between' in Section 4(c)(i) implies that a woman remains eligible until the previous day of attaining the age of 51, as she is considered 50 until the previous day of her 51^st birthday.

On the other hand, the Government Pleader submitted that the wife was ineligible since she has completed the age of 50 years. Relying upon Apex Court decisions, it was submitted persons would have considered to have attained the specified age on the day before the birthday.

The Court stated that Section 9 of General Clauses Act refers to commencement and termination of time rather than the calculation of age.

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 18^th 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.

Thus, the Court stated that it cannot extend the maximum age limit till the preceding day of the 51st birthday for females and 56th birthday for males.

Court stated, “If the petitioners' contention is accepted, the minimum age limits will be stretched to the previous days of the 24th and 27th birthday anniversary, and the maximum ages will be extended till the preceding day of the 51st and 56th birthday. It is not for this Court to extend the age limits fixed by the legislature by exercising its extra-ordinary jurisdiction. It is reasonable to presume that the legislature has imposed these age restrictions, considering the normal age that women conceive a biological child.”

The Court concluded that the Board has rightly concluded that the wife was ineligible since she has attained the age of 50 years. As such, the Court dismissed the writ petition.

Counsel for Petitioner: Advocates Adithya Rajeev, S.Parvathi, Safa Navas

Counsel for Respondents: Advocate R V Sreejith, Deputy Solicitor General of India T C Krishna, Government Pleader Vidya Kuriakose

Case Title: Rajitha P.V. v Union of India

Case No: WP(C) NO. 403 OF 2025

Citation: 2025 LiveLaw (Ker) 105