Kerala High Court
Bindu P.P vs Union Of India on 19 February, 2026
2026:KER:15801
WP(C) No.3251/2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947
WP(C) NO. 3251 OF 2026
PETITIONER/S:
1 BINDU P.P
AGED 56 YEARS
W/O SASIDHARAN M., 9/3-A, MADATHIL HOUSE, SREENILAYAM,
KUMARANALLUR P.O, KOZHIKODE DISTRICT., PIN - 673602
2 SASIDHARAN M.
AGED 64 YEARS
S/O IKKOLAN, 9/3-A, MADATHIL HOUSE, SREENILAYAM,
KUMARANALLUR P.O, KOZHIKODE DISTRICT., PIN - 673602
BY ADVS.
SRI.ADITHYA RAJEEV
SMT.S.PARVATHI
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND
FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
3 THE KERALA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND
SURROGACY BOARD
REPRESENTED BY ITS CHAIRPERSON, DISTRICT HEALTH
SERVICES, GENERAL HOSPITAL JUNCTION,
2026:KER:15801
WP(C) No.3251/2026
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THIRUVANANTHAPURAM, PIN - 695035
4 NAHAS HOSPITAL
REPRESENTED BY ITS MANAGING DIRECTOR, CALICUT ROAD,
PARAPPANANGADIM MALAPPURAM DISTRICT., PIN - 676303
5 KOKOORI LAPROSCOPIC AND IVF CLINIC
REPRESENTED BY ITS MANAGING DIRECTOR, AMRITA AVENUE,
WAYANAD RD, MALAPARAMBA, KOZHIKODE, PIN - 673009
BY ADV SHRI.BONNY BABY, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:15801
WP(C) No.3251/2026
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JUDGMENT
The writ petition is filed with the following prayers:
"To declare that Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 does not have retrospective operation and therefore, would not apply to the petitioners, who had already commenced the surrogacy process and had cryopreserved their embryos on 06-02-2020;
ii) To declare that Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 to the extent it defines the maximum age for intending couple to seek Surrogacy services from licensed clinics is violative of Article 21 of the Constitution of India;
iii) To declare that Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 to the extent it defines the maximum age for intending couple to seek Surrogacy services is violative of Article 14 of the Constitution of India;
iv) To issue a writ of Mandamus or any other appropriate writ, direction or order directing the Respondents to permit the Petitioners to continue availing surrogacy services by utilizing their embryos cryopreserved with the 4th Respondent Clinic, by exempting them from seeking certification on the qualifying age as prescribed under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021;"
2. The petitioners are wife and husband, aged 56 and 64 years respectively. From 2018, they had undergone multiple rounds of Assisted Reproductive Technology services (ART services), but did not become fruitful. The first petitioner/wife was suffering from multiple uterine fibroids, which causes increased risk of miscarriage, preterm labour, abnormal fetal position, placental problems etc. and hence, the 2026:KER:15801 WP(C) No.3251/2026 ..4..
petitioners were advised by the fourth respondent clinic to undergo surrogacy. Accordingly, the embryos of the petitioners were cryopreserved on 06.02.2020 and are currently stored with the fourth respondent clinic. It is alleged that due to the Covid-19 pandemic outbreak, the subsequent procedures were stalled. After the relaxation of lockdown restrictions in 2022, while the petitioners were attempting to resume the surrogacy process, the Surrogacy Act [for short, "the Act"] came into effect on 25.01.2022 and the Surrogacy (Regulation) Rules, 2022 [for short, "the Rules"], were promulgated on 21.06.2022. As per Section 4(iii)(c) of the Act, an eligibility certificate ought to have been issued by the appropriate authority to the intending couple if the intending couple are married and between the age of 23 to 50 years in the case of female and between 26 to 55 years in the case of male on the day of certification and if the intending couple have not had any surviving child biologically or through adoption or surrogacy earlier. Since the Act came into force and there were age restrictions in the Act, the petitioners could not continue the surrogacy process. Aggrieved by the age restriction as well as challenging Section 4(iii)(c)(I) of the Act, the petitioners have approached this Court.
3. The petitioners are wife and husband, aged 56 and 64 years, respectively. Since 2018, they had undergone multiple rounds of 2026:KER:15801 WP(C) No.3251/2026 ..5..
Assisted Reproductive Technology (ART) services without success. The first petitioner/wife was suffering from multiple uterine fibroids, which increase the risk of miscarriage, preterm labour, abnormal fetal position, and placental complications. Consequently, the petitioners were advised by the fourth respondent clinic to pursue surrogacy. Accordingly, the embryos of the petitioners were cryopreserved on 06.02.2020 and are currently stored with the fourth respondent clinic. It is alleged that, due to the Covid-19 pandemic, the subsequent procedures were stalled. After the relaxation of lockdown restrictions in 2022, while the petitioners were attempting to resume the surrogacy process, the Surrogacy Act [for short, "the Act"] came into effect on 25.01.2022, and the Surrogacy (Regulation) Rules, 2022, were promulgated on 21.06.2022. As per Section 4(iii)(c) of the Act, an eligibility certificate is required to be issued by the appropriate authority to an intending couple if the female is between 23 and 50 years of age and the male is between 26 and 55 years of age on the date of certification, and if the intending couple has not previously had any surviving child, either biologically or through adoption or surrogacy. Since the Act came into force with these age restrictions, the petitioners could not continue the surrogacy process. Aggrieved by the age restrictions and challenging Section 4(iii)(c)(I) of the Act, the petitioners 2026:KER:15801 WP(C) No.3251/2026 ..6..
have approached this Court.
4. No counter affidavit has been filed by the respondents.
5. I have heard the learned counsel for the petitioners, the learned Deputy Solicitor General of India and the learned Government Pleader.
6. The learned counsel for the petitioners submits that since the petitioners have already cryopreserved the embryo on 06.02.2020 as evident from Ext.P5 Medical Certificate dated 03.01.2026 issued by the fourth respondent clinic, the prescription of upper age limit in the Act for availing surrogacy procedures is not applicable to the petitioners. The learned counsel, relying on the judgment of the apex court in Vijaya Kumari v. Union of India [2025 KLT OnLine 3099 (SC)], further submitted that the petitioners are also entitled to get the benefit of the afore judgment and they also be permitted to avail surrogacy procedures.
7. It is the specific case of the petitioners that the embryos were cryopreserved on 06.02.2020, i.e., prior to the commencement of the Act on 25.01.2022 and hence, as held in Vijaya Kumari (supra), the petitioners are entitled to seek the benefit of the 2026:KER:15801 WP(C) No.3251/2026 ..7..
judgment and to obtain the requisite documents and certification, essential for continuing the surrogacy process. In Vijaya Kumari (supra), the apex court held as follows:
"15.8. The real issue in each case is as to the dominant intention of the Legislature to be gathered from the language used, the object indicated, the nature of rights affected, and the circumstances under which the statute is passed. Applying the aforesaid principles to the present case, if the intending couple had attained the age of 50 and 55 years prior to the coming into force of the Act and had also commenced the surrogacy procedure would the certification be denied to them after the coming into force of the Act. Conversely, if the intending couple were within the age limits when they commenced the surrogacy procedure and on the date of certification sought under the Act had overreached the age limits will the certificate be denied to them? In our view, in both of the above situations the provision cannot apply retrospectively so as to deny the certification to the intending couples in the present cases on the premise that on the date of issuance of certification they had crossed the age bar. This is because there was no age restriction when the intending couples commenced the surrogacy procedure, theAct has been enforced when the intending couple were in the midst of the procedure, at a crucial phase i.e., at the stage of creation of embryos and freezing the same. This was a sufficient manifestation of their intention. The next step was to transfer the frozen embryos to the uterus of the surrogate mother. At that stage the age bar under the Act has come into play. The intending couples have a constitutional right which was unfettered when they commenced the process of surrogacy. The same can be curtailed only by reasonable restrictions and by not interpreting the Act unfairly, so as to completely curtail their constitutional right to surrogacy which was unfettered by the Act not giving a retrospective or even a retroactive effect to the Act under consideration.
15.9. We therefore hold that creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples i.e., intending couples, in the instant cases. The earlier stages, namely, (i) Visit to surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining of the various permissions / certificates from Appropriate Authorities under S.4 of the Act, (iv) Extraction of gametes of Stage A, are no doubt part of surrogacy procedure but are stages prior to the crystallization of the intention of the couple to undertake a surrogacy procedure an interpretation we are giving in the context of age barriers.Therefore, when there was no age restriction at the stage of creation of embryos and freezing them i.e., prior to the enforcement of the Act, when the 2026:KER:15801 WP(C) No.3251/2026 ..8..
intending couples are at the threshold of Stage B, the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right underArt.21 of the Constitution.
15.10. Therefore, the rule against retrospective operation of statutes applies in the instant case in order to preserve the rights of intending couples such as the petitioners / applicant in the present case. If we do not apply the aforesaid principle of interpretation of statutes we would failing in our duty to uphold the constitutional right of such intending couples under Art.21 of the Constitution. Therefore, we hold that the age bar does not apply to intending couples such as the ones we are considering in the present cases.
16. Thus, if an intending couple had -
(i) commenced the surrogacy procedure prior to the commencement of the Act i.e.,25/01/2022; and
(ii) were at the stage of creation of embryos and freezing after extraction of gametes (Stage A of the diagram); and
(iii) on the threshold of transfer of embryos to the uterus of the surrogate mother (Stage B of the diagram) The age restriction under S.4(iii)(c)(I) of the Act would not apply.
The competent authority, on being satisfied about the aforesaid conditions (i), (ii) and (iii) above shall issue the certification provided R.14 of the Rules are satisfied by the intending couples."
8. In Vijaya Kumari (supra), the apex court fixed a cut off date as 25.01.2022 and permitted all intended couples, who commenced the surrogacy procedure prior to the commencement of the Act and who cryopreserved the embryos prior to 25.01.2022, to continue with the surrogacy procedures. Since the issue involved in the present case is similar to that in Vijaya Kumari (supra), I am of the opinion that the petitioners are also entitled to the benefit of the said 2026:KER:15801 WP(C) No.3251/2026 ..9..
judgment.
9. At this juncture, the learned counsel for the petitioners submits that, as per Ext.P5 Medical Certificate, the embryos are cryopreserved with the fourth respondent clinic; however, the fourth respondent is not an approved clinic to carry out IVF procedures. It is further submitted that the petitioners shall make the necessary applications to transfer the embryos cryopreserved with the fourth respondent to the fifth respondent hospital in accordance with Rule 19 of the Assisted Reproductive Technology (Regulation) Amendment Rules, 2023.
Accordingly, the writ petition is allowed. The petitioners are permitted to continue to avail the surrogacy services by utilizing their cryopreserved embryos. The petitioners shall take all necessary steps for the transfer of the embryos currently cryopreserved with the fourth respondent to the fifth respondent,in accordance with law.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
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APPENDIX OF WP(C) NO. 3251 OF 2026 PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE AADHAR CARD OF THE 1ST PETITIONER Exhibit-P2 A TRUE COPY OF THE AADHAR CARD OF THE 2ND PETITIONER Exhibit-P3 A TRUE COPY OF THE USG PELVIS REPORT DATED 28-11-2017 ISSUED BY THE SABINE HOSPITAL AND RESEARCH CENTRE PRIVATE LIMITED Exhibit-P4 A TRUE COPY OF THE BIOPSY/CYTOLOGY REPORT DATED 23-12-2017 ISSUED BY DDRC SRL, DIAGNOSTIC SERVICES Exhibit-P5 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 03-01-2026 ISSUED BY THE IVF SPECIALIST AND LAPAROSCOPIC SURGEON, NAHAS HOSPITAL, MALAPPURAM Exhibit-P6 A TRUE COPY OF THE RELEVANT PAGES OF THE ‘NATIONAL GUIDELINES FOR ACCREDITATION, SUPERVISION AND REGULATION OF ART CLINICS IN INDIA' FORMULATED BY ICMR AND NAMS