Wife Over 50 Is No Bar to Surrogacy Where Husband Is Within Age Limit, Rules Bombay High Court in X-1 v. Union of India
Case: X-1 & Anr. v. Union of India through the Secretary, Ministry of Health and Family Welfare, Government of India & Ors.
Citation: 2026:BHC-AS:45246-DB
Date of Judgment: 04 November 2026
Court: Bombay High Court
Coram: Justice Bharati Dangre and Justice Ashish S. Chavan
Proceedings: Writ Petition No. 11143 of 2026
Court Observation
“…the course adopted by different High Courts in accepting the collective age of the ‘commissioning couple’ under the ART Act, we see no reason why the said principle shall not be made applicable to the Petitioners before us.”
Summary
The Bombay High Court has held that a married couple is not barred from surrogacy merely because the wife has crossed 50 years of age, so long as the husband is within the permitted age bracket. The petitioners, a couple aged 54 and 53, had undergone several unsuccessful IVF cycles and were advised gestational surrogacy. The Appropriate Authority, Nashik Municipal Corporation, had refused them an eligibility certificate on 14 July 2026 solely because the wife was over 50, the upper age limit for a woman under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which prescribes 23 to 50 years for the woman and 26 to 55 years for the man.
Reading the Surrogacy Act, 2021 together with the Assisted Reproductive Technology Act, 2021 as allied statutes forming a single code, the Court held that the intending couple must be treated as a unit and the collective age of the couple considered. The age-related disqualification of one spouse cannot be allowed to penalise the other spouse. The Court expressly did not rule on the validity of the statutory age limit itself, and refused the Union’s request for a stay to enable an appeal to the Supreme Court.
Key Holdings
- The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021 are allied and cognate statutes forming a single code, and the principles under Section 21(g) of the ART Act apply to surrogacy.
- An intending couple is not barred from surrogacy where the wife has crossed 50 years of age but the husband is within the permitted age bracket — the couple is read together and their collective age is considered.
- The age-related disqualification of one spouse cannot penalise the other spouse.
- The Court did not rule on the validity of the statutory age limit.
- The Union’s request for a stay of the judgment to enable an appeal to the Supreme Court was refused.
Directions Issued
- A writ of mandamus was issued to the Appropriate Authority to issue the eligibility certificate to the petitioners.
- The petitioners were declared eligible for surrogacy and, if required, for the ART procedure.
- The District Medical Board, Nashik, was directed to issue the certificate of medical indication if the medical requirements are met.
Background
The petitioners, who had undergone several unsuccessful IVF cycles, applied for an eligibility certificate for gestational surrogacy. The Appropriate Authority refused the certificate on 14 July 2026 solely on the ground of the wife’s age, leading the couple to invoke Articles 14 and 21 of the Constitution before the High Court.
Related Articles
- Legal Considerations in Surrogacy and Assisted Reproductive Technology
- Reproductive Rights Of Women, Surrogacy And Adoption
- Surrogate Motherhood in India: An Analysis
Judgment Link: Read the full judgment (PDF)
Disclaimer: This is a summary prepared for informational purposes only and does not constitute legal advice. Readers should refer to the official judgment for the authoritative text.
