Sanchayita Lahkar

The Gauhati High Court of Gauhati, Division Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury has dismissed a writ petition by an intending married couple seeking permission to pursue surrogacy despite being beyond the statutory age limit and despite restrictions on using donor gametes. The couple, citing medically certified infertility, challenged the Surrogacy (Regulation) Act, 2021 eligibility conditions and the March 2023 amendment to Form 2 under the 2022 Rules, contending that the authorities’ refusal violated their constitutional rights. The Court held that the statutory restrictions governing surrogacy are constitutionally valid and cannot be relaxed on individual circumstances, stating that the measures serve legitimate state interests, have a rational link to the law’s purpose and are not excessive; genuine hardship cannot justify diluting a public-interest policy.

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Subsequently, a notification dated 14 March 2023 amended Form-2 under the Surrogacy (Regulation) Rules, 2022, prohibiting the use of donor gametes by married couples while permitting such use for specified categories of single women. By the time the petitioners sought fresh permission to initiate surrogacy, they had crossed the upper age limit prescribed under Section 4(iii)(b)(I) of the Act. The competent authorities declined permission citing statutory ineligibility and non-compliance with the amended Form-2.

The petitioners challenged the age-based eligibility condition and the amended Form-2, alleging violation of Articles 14 and 21 of the Constitution and asserting that their reproductive autonomy stood impermissibly curtailed.

The Division Bench noted that “the right to make decisions relating to reproduction and parenthood forms part of personal liberty under Article 21 of the Constitution of India”, while simultaneously recording that “the fundamental rights are not absolute and are subject to reasonable restrictions imposed by law.”

On the nature of judicial scrutiny, the Court recorded that “the constitutional enquiry, therefore, is not whether a right exists but whether the impugned restrictions are reasonable, non-arbitrary, and proportionate.”

With respect to legislative policy, the Bench observed that “prior to the enactment of the statute, surrogacy in India operated in a largely unregulated space” and that Parliament “chose to replace the regime with a structured framework prescribing eligibility conditions, procedural safeguards, and regulatory oversight.” The Court stated that “substantial deference” was required in matters involving “complex socio-medical considerations.”

On age-based eligibility, the Bench stated that “age-based classification has long been recognised as a valid basis of legislative differentiation” and that “in the context of surrogacy, age limits are clearly linked to the concerns of parental capacity, health, longevity, and long-term welfare of the child.” It was further recorded that “the petitioners admittedly crossed the upper age limit before seeking fresh permission under the Act, 2021.”

Addressing the argument based on prior eligibility, the Court observed that “eligibility conditions must be satisfied on the date when the benefit is claimed, unless the statute expressly provides otherwise.” It further stated that “the failure of the earlier surrogacy attempt, though unfortunate, does not confer a vested right to re-initiate surrogacy in disregard of subsequently enacted or amended statutory requirements.”

On legitimate expectation, the Court recorded that “legitimate expectation neither can be operated against a statute, nor can it be invoked to defeat a clear legislative mandate.”

Regarding the amendment to Form-2, the Bench observed that “the restriction on the use of donor gametes by a married couple reflects a policy choice aimed at ensuring genetic linkage between the child and the intending parents.” It further stated that “so long as the classification is reasonable, the Courts cannot sit in appeal over legislative policy.”

On retrospectivity, the Court recorded that “the impugned provisions are not being applied retrospectively” and that the petitioners’ earlier attempt “cannot be said to be a continuing one.”

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Finally, the Bench observed that “individual hardship, however genuine, cannot be a ground to strike down or relax a statutory policy framed in the public interest.”

The Court recorded that “for the reasons recorded hereinabove, it is held that the writ petition is devoid of merit. Accordingly, the same is dismissed. There shall be no order as to cost.”

Advocates Representing the Parties

For the Petitioners: Mr. A. Ahmed, Advocate

For the Respondents: Ms. A. Gayan, Central Government Counsel; Ms. R. B. Bora, Government Advocate, Assam

Case Title: Seema Chakraborty & Anr. v. Union of India & Ors.
Neutral Citation: 2025: GAU-AS:17578
Case Number: WP(C) No. 7348 of 2023
Bench: Chief Justice Ashutosh Kumar, Justice Arun Dev Choudhury