In a landmark ruling, the Kerala High Court has allowed a 50-year-old woman to pursue surrogacy under the Surrogacy (Regulation) Act, 2021, reported TOI.
A division bench, consisting of Chief Justice Nitin Jamdar and Justice S Manu, overturned a previous decision by a single bench and granted the woman the opportunity to become a mother through surrogacy, said the report. The court highlighted that the Act permits surrogacy for women aged "between 23 to 50 years," which includes women who are exactly 50 years old.
The woman had initially been denied surrogacy by the Kerala State Assisted Reproductive Technology and Surrogacy Board (KSARTSB), which cited the Act's age requirement. The board’s decision was challenged by the woman and her husband in the High Court.
According to TOI, although a single bench had upheld the board’s decision, the division bench ruled in their favour, ordering KSARTSB to issue the eligibility certificate within a week.
The main issue was whether a woman who had already turned 50 could still qualify for surrogacy, given the Act’s age limit of "between 23 to 50 years."
The petitioner’s school records indicated her birthdate as June 24, 1974, making her 50. The single bench had ruled that she was ineligible, interpreting that a person reaches a specific age on the day before their birthday, noted the report.
The division bench examined how different laws define age limits and pointed out that the Assisted Reproductive Technology (ART) Act, 2021 sets an age range for women undergoing ART procedures as "above 21 years and below 50 years."
TOI further reported that the court noted that while ART procedures involve medical risks, surrogacy is more focused on the emotional aspect of parenthood. It stressed that the age requirements for surrogacy do not need to be identical to those for ART procedures.
The court also emphasized that the Surrogacy Act's purpose is to prevent unethical practices, such as sex selection and forced surrogacy, rather than deny legitimate cases. It recognized that this would be the woman's last chance to experience motherhood, an essential and deeply personal part of life.
The court argued that any interpretation that permanently prevents someone from this opportunity should be approached with care. Concluding that the law intended to keep the possibility of motherhood open, the court ruled that there was no reason to deny it prematurely.
A division bench, consisting of Chief Justice Nitin Jamdar and Justice S Manu, overturned a previous decision by a single bench and granted the woman the opportunity to become a mother through surrogacy, said the report. The court highlighted that the Act permits surrogacy for women aged "between 23 to 50 years," which includes women who are exactly 50 years old.
The woman had initially been denied surrogacy by the Kerala State Assisted Reproductive Technology and Surrogacy Board (KSARTSB), which cited the Act's age requirement. The board’s decision was challenged by the woman and her husband in the High Court.
According to TOI, although a single bench had upheld the board’s decision, the division bench ruled in their favour, ordering KSARTSB to issue the eligibility certificate within a week.
The main issue was whether a woman who had already turned 50 could still qualify for surrogacy, given the Act’s age limit of "between 23 to 50 years."
The petitioner’s school records indicated her birthdate as June 24, 1974, making her 50. The single bench had ruled that she was ineligible, interpreting that a person reaches a specific age on the day before their birthday, noted the report.
The division bench examined how different laws define age limits and pointed out that the Assisted Reproductive Technology (ART) Act, 2021 sets an age range for women undergoing ART procedures as "above 21 years and below 50 years."
TOI further reported that the court noted that while ART procedures involve medical risks, surrogacy is more focused on the emotional aspect of parenthood. It stressed that the age requirements for surrogacy do not need to be identical to those for ART procedures.
The court also emphasized that the Surrogacy Act's purpose is to prevent unethical practices, such as sex selection and forced surrogacy, rather than deny legitimate cases. It recognized that this would be the woman's last chance to experience motherhood, an essential and deeply personal part of life.
The court argued that any interpretation that permanently prevents someone from this opportunity should be approached with care. Concluding that the law intended to keep the possibility of motherhood open, the court ruled that there was no reason to deny it prematurely.
