Surrogacy — Age Limit Upheld · 9 September 2026
X and Anr. v. Union of India and Ors.: Kerala High Court Upholds Surrogacy Act's Upper Age Limit, Even Where Embryos Were Frozen Earlier
High Court of Kerala (Ernakulam) · 2026 LiveLaw (Ker) 494; WA No. 1318 of 2026
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A couple began fertility treatment in 2022, while the husband was still under 55, and successfully cryopreserved embryos that August. They obtained a medical certificate of necessity in mid-2023, and by mid-2025 had also secured court orders on the parentage and custody of the child to be born through surrogacy. Only in May 2025 did they approach the state's Assisted Reproductive Technology and Surrogacy Board for the eligibility certificate required under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 — by which time the husband had crossed the Act's 55-year upper age limit, and the Board refused the certificate. A Single Judge dismissed their challenge to that refusal, and they appealed.
A Division Bench of the Kerala High Court dismissed the appeal. It held that eligibility under the Act is assessed as on the date the certificate is sought, not on the date embryos were frozen or treatment began, and that having embryos ready in advance does not create a right to bypass the age limit at the certification stage. The Court also rejected the couple's argument that the age limits were arbitrary or unconstitutional, holding that the limits bear a reasonable relationship to the Act's underlying purpose of protecting the welfare of a child born through surrogacy.
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