Surrogacy age limit: Bombay HC clears 54-year-old wife as husband is 53

The Bombay High Court has ruled that a married couple's eligibility for surrogacy can be judged by looking at the couple together, so a wife who is above the age limit is not automatically shut out when her husband is still within it. In a decision dated Wednesday, 4 November 2026, a bench of Justices Bharati Dangre and Ashish S. Chavan set aside the Nashik Municipal Corporation's refusal of an eligibility certificate to a 54-year-old woman and her 53-year-old husband, and directed the authorities to issue the certificate.

Surrogacy is the arrangement in which another woman carries a pregnancy for an intending couple. Since the Surrogacy (Regulation) Act came into force, only altruistic surrogacy is allowed in India, meaning the surrogate cannot be paid beyond medical expenses and insurance. Before a couple can begin, they need two papers: an eligibility certificate from the Appropriate Authority, and a certificate of medical indication showing that they need surrogacy. Without the first, the process cannot start at all.

The age bands in the Act have been one of the most debated parts of the law. Many couples turn to surrogacy only after years of infertility treatment, so they often reach the upper age limit just as other options run out. This couple's case fits that pattern: reports say they tried to conceive naturally and through several IVF cycles before applying.

The court's approach rests on how it read the law's purpose. It treated husband and wife as one applicant, the "intending couple", rather than two people tested separately. It relied on earlier High Court rulings under the Assisted Reproductive Technology (ART) Act, including Sanchita Ghosh v. Union of India, which also treated a couple as a unit where one spouse is within the age limit. The Union government had defended the age cap in court, pointing to an expert committee report on health risks and reduced caregiving capacity when parents are older.

For families, the ruling recognises a reality the law's two separate age bands do not fully address: in a marriage, the decision to have a child through surrogacy is made jointly. At the same time, the court was careful to keep the ruling narrow. It did not strike down the age limit, and the couple must still satisfy every medical and legal condition before any surrogacy can go ahead.

Peepals calculation: The wife is 4 years above the women's upper limit (54 - 50 = 4), while the husband is 2 years below the men's upper limit (55 - 53 = 2). The court's ruling came 113 days after the civic body's refusal (17 days left in July + 31 in August + 30 in September + 31 in October + 4 in November = 113). Our calculation from the reported figures.

Short-term: The Nashik authorities must now issue the eligibility certificate, and the district medical board must examine the couple for the certificate of medical indication.

Long-term: The ruling adds to a line of High Court decisions that treat the intending couple as one unit for age purposes. Other couples in a similar position may cite it when their applications are refused, although each case will still be decided on its facts, and the wider question of whether the age limits are valid remains open.

Who is affected: Married couples seeking surrogacy where one spouse has crossed the upper age limit and the other has not, the district Appropriate Authorities that issue eligibility certificates, and medical boards that certify the need for surrogacy.

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