The Calcutta High Court has affirmed that couples who initiate the surrogacy process within statutory age limits and successfully cryopreserve embryos may not be denied eligibility certificates merely because one spouse subsequently exceeds the upper age limit. This ruling prioritizes procedural fairness and medical reality over rigid age thresholds in assisted reproduction.
Background & Facts
The Dispute
The petitioners, Sangita Raha and her husband, sought to avail of gestational surrogacy under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. The petitioners, married under Hindu rites on 21.02.2019 and registered on 13.05.2025, faced infertility despite IVF attempts. Due to the petitioner-wife’s advanced age and inability to conceive naturally, they opted for surrogacy.
Key Facts
- The petitioner-wife (no.1) was 49 years old on 05.02.2026, the date of application for eligibility certificate
- The petitioner-husband (no.2) was marginally beyond the upper age limit prescribed under Section 21(g) of the ART Act
- The petitioner-wife was within the permissible age limit (45 years) on 26.05.2025 when she applied for the Certificate of Medical Indication
- The Certificate of Medical Indication was issued on 16.04.2025 by the Chief Medical Officer, Darjeeling
- Ovum retrieval occurred on 29.11.2025
- Two cryopreserved embryos were successfully stored on 16.12.2025
- The Fetus IVF Centre certified on 04.03.2026 that the embryos were viable and had a fair chance of successful pregnancy upon transfer
- The application for eligibility certificate under Regulation 4(c) of the Surrogacy Act was submitted on 05.02.2026 and remained pending
Procedural History
- 26.05.2025: Application for Certificate of Medical Indication submitted to CMO, Darjeeling
- 16.04.2025: Certificate of Medical Indication issued
- 29.11.2025: Ovum retrieval completed
- 16.12.2025: Embryos cryopreserved and confirmed viable by Fetus IVF Centre
- 05.02.2026: Application for eligibility certificate filed with Health Secretary, Government of West Bengal
- 08.04.2026: Writ Petition (WPA 481 of 2026) filed before Calcutta High Court
- 16.04.2026: Court heard arguments and delivered judgment
Relief Sought
The petitioners sought a direction to the State to issue the eligibility certificate under Regulation 4(c) of the Surrogacy Act, 2021, enabling them to proceed with embryo transfer to a surrogate mother.
The Legal Issue
The central question was whether an intending couple loses eligibility for surrogacy under the Surrogacy (Regulation) Act, 2021, solely because one spouse exceeds the upper age limit after the medical indication and cryopreservation of embryos, but was within the limit at the time of initiating the process.
Arguments Presented
For the Petitioner
The petitioners argued that the medical indication, ovum retrieval, and cryopreservation were completed while the petitioner-wife was within the statutory age limit of 45 years under the ART Act. The delay in issuing the eligibility certificate was attributable to administrative inaction, not the petitioners’ conduct. They relied on Shyamoli Saha & Anr. v. State of West Bengal and Sanchita Ghosh & Anr. v. Union of India, where the Court held that the spirit of the law permits ART access when the medical process has commenced lawfully. They emphasized that denying the certificate would render the cryopreserved embryos useless and inflict irreparable emotional and financial harm.
For the Respondent
The State contended that Regulation 4(c) of the Surrogacy Act strictly requires both intending parents to be within the prescribed age limits at the time of applying for the eligibility certificate. The State argued that it lacked the authority to waive or modify the age criteria set by the Central Government under Section 21(g) of the ART Act, and that any deviation would violate statutory compliance.
The Court's Analysis
The Court examined the statutory framework under the Surrogacy (Regulation) Act, 2021 and the ART Act, 2021, and noted that while age limits are prescribed, they are not absolute barriers when the medical process has been lawfully initiated. The Court observed that the petitioners acted in good faith, obtained all necessary medical clearances, and completed the critical stages of the ART process - including ovum retrieval and cryopreservation - while the petitioner-wife was within the permissible age limit.
"The medical report and cryopreserved report would demonstrate that the petitioner no.1 was physically fit to hold eggs and the summary of created embryo would suggest that the same has been successfully cryopreserved."
The Court distinguished between the initiation of the process and the final administrative step. It held that the delay in issuing the eligibility certificate was not attributable to the petitioners and that denying them the certificate now would amount to punishing them for administrative inertia. The Court further relied on its own precedent in Shyamoli Saha and Sanchita Ghosh, where it had recognized that the purpose of the law is to enable parenthood for infertile couples, not to impose mechanical barriers after substantial medical investment.
The Court also noted that the average age of menopause in Indian women is 46.2 years, as per government data, suggesting that the rigid upper limit of 45 years may not fully reflect biological realities. The Court emphasized that the cryopreserved embryos represent a unique medical asset, and their destruction or abandonment would violate the petitioners’ right to reproductive autonomy under Article 21 of the Constitution.
The Verdict
The petitioners succeeded. The Court directed the State of West Bengal to issue the eligibility certificate under Regulation 4(c) of the Surrogacy (Regulation) Act, 2021 within seven working days from the date of judgment. The Court emphasized that the petitioners’ cryopreserved embryos are viable and that the process must proceed to enable parenthood. The order is binding and must be implemented based on the server copy downloaded from the Court’s official website.
What This Means For Similar Cases
Medical Initiation Trumps Administrative Delay
- Practitioners may now argue that if all medical steps (indication, retrieval, cryopreservation) are completed within statutory age limits, administrative delays in issuing eligibility certificates cannot invalidate the process
- The burden shifts to the State to justify delays, not to the couple to restart the entire ART process
Cryopreserved Embryos as Protected Medical Assets
- Courts are likely to treat cryopreserved embryos as irreplaceable medical assets whose destruction or abandonment may constitute a violation of reproductive rights
- Legal challenges to eligibility denials post-cryopreservation will now have stronger footing under Shyamoli Saha and this judgment
Age Limits Are Not Absolute Barriers
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The judgment signals judicial willingness to interpret age limits flexibly in light of medical reality and constitutional rights
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Future applicants who exceed age limits after initiating ART but before final approval may now seek equitable relief
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Always document the exact date of medical indication, ovum retrieval, and embryo cryopreservation
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File applications for eligibility certificates immediately after medical clearance
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Cite Shyamoli Saha and Sanchita Ghosh as binding precedents in similar cases
