Kerala High Court
John Mathew vs Union Of India on 8 April, 2026
WP(C) NO. 8145 OF 2026 1 2026:KER:32538
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
WP(C) NO. 8145 OF 2026
PETITIONERS:
1 JOHN MATHEW
AGED 56 YEARS
S/O OC MATHEW, OOTHINKATTIL HOUSE, THEKKEMALA P.O,
KOZHENCHERRY, PATHANAMTHITTA, KERALA, PIN - 689564
2 JANI MOL.P.V
AGED 50 YEARS
D/O P.C.VARUGHESE, PULIPRA, MADAMON.P.O,
VADASSERIKKARA, PATHANAMTHITTA, PIN - 689711
BY ADVS.
KUM.GAYATHRI MURALEEDHARAN
SMT.ARCHANA B.
SHRI.AJIN K. KURIAKOSE
SMT.SRUTHILAKSHMI SHAJI
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, GOVERNMENT OF INDIA, NIRMAN BHAVAN,
NEW DELHI, PIN - 110011
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 KERALA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND
SURROGACY BOARD
REPRESENTED BY ITS CHAIRPERSON, DIRECTORATE OF
HEALTH SERVICES, THIRUVANANTHAPURAM, PIN - 695035
WP(C) NO. 8145 OF 2026 2 2026:KER:32538
4 THE APPROPRIATE AUTHORITY UNDER THE SURROGACY
(REGULATION) ACT, 2021
REPRESENTED BY THE DIRECTOR OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM,
PIN - 695035
5 LIFELINE MULTI SPECIALITY HOSPITAL
MELOOD PO, ADOOR, PATHANAMATHITTA, KERALA ,
REPRESENTED BY ITS MANAGING DIRECTOR., PIN - 691554
BY ADVS.
SHRI.ARUN.B.VARGHESE, CGC
SHRI.LIJIN V.L.
SHRI.SRI.P.M.SHAMEER - GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.04.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 8145 OF 2026 3 2026:KER:32538
M.B.SNEHALATHA, J.
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W.P(C) No.8145 of 2026
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Dated this the 8th April, 2026
JUDGMENT
Petitioners who are husband and wife have approached this Court seeking the following reliefs:
"i) Issue a writ of Mandamus or any other appropriate writ, order or direction directing respondents 1 to 4 to issue Eligibility Certificate to the petitioners under Section 4(iii)(c) of the Surrogacy (Regulation) Act, 2021, enabling them to proceed with gestational surrogacy using the embryos created and cryopreserved in the year 2021;
ii) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 5th respondent to permit the petitioners to proceed with gestational surrogacy using the embryos created and cryopreserved in the year 2021;
iii) Declare that the 2nd petitioner, having completed 50 years but not yet attained 51 years, is eligible to avail surrogacy in view of the law laid down in Rajitha P.V v Union of India (WA No.412 of 2025);
iii) Declare that the age restriction under Section 4(iii)
(c)(I) of the Surrogacy (Regulation) Act, 2021 shall not operate as a bar to the petitioners in respect of embryos created and cryopreserved prior to 25.1.2022, in view of the law declared by the Hon'ble Supreme Court in Vijaya Kumari.S and another v. Union of India (2025 INSC 1209);"
2. 1st petitioner is aged 56 and his date of birth is 18.7.1969, 2nd petitioner is aged 50 and her date of birth is 5.5.1971 and she has not WP(C) NO. 8145 OF 2026 4 2026:KER:32538 attained the age of 51. Petitioners are issueless. They had undergone Assisted Reproductive Technology procedure and the embryos were created and cryopreserved in the year 2021 prior to the commencement of Surrogacy (Regulation) Act. Despite nine attempts of embryo transfer, implantation did not occur. Two viable embryos remain preserved at 5 th respondent, Multi Specialty Hospital. The embryos were created and preserved prior to the commencement of Surrogacy (Regulation) Act, 2021 and the Rules framed thereunder. While the 2 nd petitioner is within the permissible age as interpreted, the 1 st petitioner has crossed the age limit of 55 years. Though the 2nd petitioner has completed 50 years of age, has not yet attained 51 years and therefore she remains statutorily eligible under Section 4(iii)(c)(I) of the Surrogacy Regulation Act until she turns 51 as held by the Division Bench of this Court in Rajitha P.V v. Union of India (W.A No.412/2025). Since the petitioners who are the intending couple had commenced the surrogacy process prior to the coming into force of the Act, including freezing embryos, the age restrictions under Section 4(iii)(c)(I) of the Surrogacy Act cannot be applied retrospectively to defeat such vested reproductive rights of the petitioners. Since the 2nd petitioner remains statutory eligible under Section 4(iii)(c)(I) of the Act, denial of continuation of the treatment by the 5th respondent is illegal and arbitrary and against the decision of the Hon'ble Apex Court in Vijaya Kumari S. and another v. Union of India WP(C) NO. 8145 OF 2026 5 2026:KER:32538 (2025 INSC 1209).
3. Heard the learned counsel for the petitioners, learned Central Government Standing Counsel for the 1 st respondent and the learned Government Pleader.
4. R5 entered appearance and filed affidavit stating that petitioners have been undergoing treatment for infertility at the said hospital and the embryos were created on 24.12.2021 and presently the two balance cryo preserved embryos are available.
5. The Surrogacy (Regulation) Act, 2021 (Act of 2021) and the Surrogacy (Regulation) Rules, 2022 (Rules of 2022) regulate the procedure for conceiving through surrogacy.
6. Section 2(1)(r) defines an "intending couple" as those who have a medical need for surrogacy and seek to become parents through it.
7. Section 2(1)(zd) defines "surrogacy" as a practice where one woman carries a child for an intending couple and hands over the child after birth.
8. Section 2(1)(zg) defines a "surrogate mother" as a woman who agrees to carry a child through surrogacy and meets the prescribed conditions. The couple intending to follow surrogacy has to possess documents and certificates specified under Section 4 of the Act of 2021.
9. Amongst other conditions, Section 4(iii)(c)(I) stipulates that WP(C) NO. 8145 OF 2026 6 2026:KER:32538 they must be married and between the age of 23 to 50 years in case of female and between the age of 26 to 55 years in case of male on the day of certification. They must not have a surviving child by birth, adoption, or prior surrogacy, except if the child has a life-threatening disorder with no cure, as certified by a District Medical Board.
10. Section 4(iii)(c)(I) of the Surrogacy Act provides that on and from the date of commencement of the Act, an intending couple requires an eligibility certificate issued by the appropriate authority certifying that the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the date of certification.
11. It is the case of the petitioners that though the 1 st petitioner/husband is aged 56, 2nd petitioner is aged only 50 and has not yet attained the age of 51. Their case is that embryos were frozen before the commencement of the Surrogacy Act. The affidavit filed by the 5 th respondent hospital would also reveal that the embryos were cryopreserved in the hospital before the commencement of the Act. But the petitioners are not able to proceed with the surrogacy treatment using their cryopreserved embryos on the ground that the 1st petitioner/husband has crossed the age bar.
12. It is the contention of the petitioners that applying the current age bar retroactively to pre-existing gametes and embryos WP(C) NO. 8145 OF 2026 7 2026:KER:32538 violates vested reproductive rights and amounts to unconstitutional retrospective application, contrary to settled principles of substantive due process.
13. In Vijaya Kumari (cited supra) the Apex Court held that if an intending couple had commenced the surrogacy procedure prior to the commencement of the Act ie. 25.1.2022 and were at the stage of creation of embryos and freezing after extraction of the gametes and on the threshold of transfer of embryos to the uterus of the surrogate mother, the age restriction under Section 4(iii)(c) (I) of the Act would not apply.
14. In the case at hand, embryos were cryo preserved before the commencement of the Act. Therefore, the petitioners are permitted to proceed with the gestational surrogacy using the embryos created and cryopreserved in the year 2021.
In the result, the writ petition is allowed.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
WP(C) NO. 8145 OF 2026 8 2026:KER:32538
APPENDIX OF WP(C) NO. 8145 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE THE MARRIAGE CERTIFICATE
DATED.1.12.2020
Exhibit P2 TRUE COPY OF THE THE AADHAAR CARD OF THE
1ST PETITIONER ISSUED ON 01.09.2022
Exhibit P2(a) TRUE COPY OF THE THE AADHAAR CARD OF THE
2ND PETITIONER ISSUED ON 20.01.2020
Exhibit P3 THE MEDICAL CERTIFICATE DATED 16.02.2026
ISSUED BY THE 5TH RESPONDENT HOSPITAL
Exhibit P4 THE TRUE COPY OF MEDICAL CERTIFICATE,
EVIDENCING THE CRYO PRESERVATION OF THE
EMBRYOS DONE IN THE YEAR 2021 DATED 11-03-
2026
Exhibit P5 THE TRUE COPY OF THE JUDGMENT BY THE
HONOURABLE APEX COURT IN VIJAYAKUMARI S &
ANOTHER VS. UNION OF INDIA ( 2025 INSC
1209) DATED 09/10/2025
Exhibit P6 THE TRUE COPY OF THE JUDGMENT IN SAJITHA
ABDUL NAZAR AND OTHERS VS. UNION OF INDIA
AND OTHERS ( WP (C) 31161/2024) DATED
24/02/2025
Exhibit P7 THE TRUE COPY OF THE JUDGMENT IN WA
2009/2025, UNION OF INDIA VS. DEVAYANI S
AND OTHERS (2025: KER:83955) DATED
06/11/2025
RESPONDENTS EXHIBITS: NIL