MUMBAI: The Bombay High Court has allowed a 54-year-old woman to pursue motherhood through surrogacy even though the Surrogacy (Regulation) Act, 2021 caps the intending mother’s age at 50 years, ruling that a woman cannot be denied the fundamental right to motherhood solely based on the statutory age limit under the law.
It noted that the psychological and caregiving implications of advanced parental age applies with equal force to a child born out of surrogacy or a child born through the use of assisted reproductive technology. The couple argued that the Supreme Court had recognised a woman’s reproductive choice as an integral facet of personal liberty under Article 21 of the Constitution and that reproductive autonomy included the freedom to make decisions concerning procreation. Because the woman was 54, exceeding the prescribed upper age limit of 50 under the Act, the couple had moved the high court after the Nashik Municipal Corporation on July 14 rejected their application for a surrogacy eligibility certificate solely.
They told the court that they had made serious and continuous efforts to conceive naturally, but the prolonged attempts had remained unsuccessful. They had consulted qualified infertility specialists and undergone Assisted Reproductive Technology (ART) procedures, including multiple cycles of In Vitro Fertilisation (IVF) at recognised fertility centres, but these treatments did not result in successful clinical pregnancy, they said. The court noted that the right to make reproductive choices “must operate with full force to ensure that every couple or individual woman can avail the reproductive rights to its fullest” by addressing the societal and systematic barriers in its way. The court further said that it “fails to understand” how the age limit can be made applicable only to a child born through surrogacy, and not to a child born through the use of ART techniques, after noting that in cases involving ART, courts had adopted an approach of considering the couple as a composite unit, and permitting treatment where one spouse had crossed the age limit but the other remained eligible. “Whenever such a challenge is faced, all the relevant aspects, including the study of the impact of age in rearing children at advanced age will receive due consideration,” the court said.
