In a landmark ruling, the Kerala High Court has allowed a 50-year-old married woman to undergo surrogacy under the Surrogacy (Regulation) Act, 2021. A division bench comprising Chief Justice Nitin Jamdar and Justice S. Manu overturned a single bench’s decision that had denied the woman permission based on the Act’s age restriction.
The woman was initially denied permission by the Kerala State Assisted Reproductive Technology and Surrogacy Board (KSARTSB), as the Act states that a married woman seeking surrogacy must be “between 23 and 50 years old” at the time of certification. Since the woman had already turned 50, the board refused her request, a decision upheld by a single bench.
Emotional Desire for Motherhood is Crucial
According to news of Times of India, the division bench ruled in favor of the woman, emphasizing that the emotional desire for motherhood is crucial in surrogacy. The court noted that under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), a woman undergoing ART procedures like IVF and intrauterine insemination must be between 21 and 50 years. It stated that ART procedures involve medical risks, while surrogacy primarily involves emotional and ethical considerations.
Key Observations by the Court
- The Surrogacy Act aims to prevent unethical practices, not arbitrarily deny legitimate cases.
- The case involved the petitioner’s last opportunity to experience motherhood, which is a deeply personal and fundamental aspect of life.
- The court ruled that age restrictions should not be interpreted rigidly, especially when the law does not explicitly close the door for such cases.
- The KSARTSB was directed to issue the eligibility certificate within a week.
What is Surrogacy?
Surrogacy is an arrangement where a woman carries and gives birth to a child on behalf of another person or couple. It is an option for women who cannot conceive or carry a pregnancy due to medical conditions, missing reproductive organs, or high-risk pregnancies.
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This verdict is seen as a significant step towards protecting women’s reproductive rights and recognizing their emotional and medical needs in the surrogacy process.
