Kerala High Court Rules on Surrogacy Age Limit: Eligibility Ends on Preceding Day of 50th Birthday

Post By 24law
February 14, 2025

Pranav B Prem

In a significant ruling, the Kerala High Court has clarified that a woman becomes eligible for surrogacy upon attaining the age of 23 and remains eligible until the preceding day of her 50th birthday. The Court held that the maximum age limit for a female cannot be extended to the day before her 51st birthday, citing the age restrictions imposed by the legislature based on the normal age of biological conception.

The decision was delivered by a single bench of Justice C.S. Dias in W.P. (C) No. 403 of 2025, wherein the petitioners, a married couple, sought an eligibility certificate for surrogacy under Section 4(c)(i) of the Surrogacy (Regulation) Act, 2021. The Kerala State Assisted Reproductive Technology and Surrogacy Board had orally declined their request, stating that the wife had crossed the maximum permissible age for surrogacy.

Legal Interpretation of Age Limits

Section 4(c)(i) of the Surrogacy (Regulation) Act, 2021 states that an intending couple must be "between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male" on the day of certification. The petitioners contended that the phrase "between 23 to 50 years" should be interpreted to mean that a woman remains eligible until the day before she turns 51, relying on Section 9 of the General Clauses Act.

Rejecting this argument, the Court held:"…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."

Judicial Precedents on Age Calculation

The petitioners relied on judgments of the Supreme Court, including Tarun Prasad Chatterjee v. Dinanath Sharma [(2000) 8 SCC 649] and Shashikala v. Gangalakshmamma [(2015) 9 SCC 150], arguing that age should be calculated to include the last day of a given period. However, the Court ruled that these cases dealt with different legal contexts and were inapplicable to the present matter.

Instead, the Court referred to Prabhu Dayal Sesma v. State of Rajasthan [(1986) 4 SCC 59], which clarified:"…a person attains the specified age on the day preceding the anniversary of his birthday." The Court also cited Earati Laxman v. State of Andhra Pradesh [2009 (3) SCC 337], where the Supreme Court reaffirmed that an individual attains a specified age at midnight on the day preceding their birthday.

Application of the Majority Act and General Clauses Act

Addressing the petitioners’ reliance on Section 9 of the General Clauses Act, the Court clarified that this provision pertains to the "commencement and termination of time" rather than the "calculation of age." The Court further cited Section 4 of the Indian Majority Act, 1875, which provides: "In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority… at the beginning of the eighteenth anniversary of that day." Thus, the Court concluded that age computation must align with established legal principles, confirming that a woman ceases to be eligible for surrogacy on the day preceding her 50th birthday.

Verdict

The Court emphasized that it cannot extend the age limits set by the legislature using its extraordinary jurisdiction. Observing that these age restrictions were imposed considering the "normal age that women conceive a biological child," the Court held: "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." Accordingly, the Court dismissed the writ petition, upholding the Board's decision that the wife was ineligible for surrogacy as she had already attained the age of 50 years.