The petitioners’ grievance was that the surrogacy procedure was not being extended to them solely because the husband had attained the age of 55. (AI-generated image)A 55-year-old man can continue the surrogacy procedure undertaken with his wife until he turns 56, the Kerala High Court has ruled, noting that their embryo had already been cryopreserved. Referring to its own earlier ruling, the court said a restrictive reading of the law could permanently deprive the couple of the chance to have a child through surrogacy.Justice Harisankar V Menon was hearing a petition filed by a married couple from Kollam seeking surrogacy under the Surrogacy (Regulation) Act, 2021. The procedure had already begun and their embryo was cryopreserved in 2022. They approached the court after further surrogacy services were not extended because the husband had turned 55, citing Section 4(iii)(c) of the Act. The order did not specify when exactly the services were stopped.“Motherhood is a deeply personal and fundamental aspect of life. Any interpretation that results in depriving someone of it permanently has to be approached with caution. If one interpretation leads to a complete and irreversible loss – in this case, the inability to ever bear a child through surrogacy – it demands a higher level of scrutiny,” the court said on August 21, referring to its own earlier division bench ruling.The court had made the earlier observations while interpreting the age requirement applicable to an intending woman under the 2021 Act. It had held that the phrase “between the age of 23 to 50 years” included the age of 50, meaning eligibility continued throughout the woman’s 50th year and ceased the day before she turned 51. A woman who wishes to avail surrogacy is referred to as an intending woman under the 2021 Act.Couple move courtThe petitioners, husband and wife, had approached the court after the surrogacy procedure they had sought had already commenced. The court noted that the embryo was cryopreserved during 2022, as evidenced by a certificate produced before it. Justice Harisankar V Menon disposed of the plea as per the judgment in the Rajitha P V case.Their grievance was that the procedure was not being extended solely because the husband had attained the age of 55. The petitioners argued that the reasoning adopted by the division bench in Rajitha P V in relation to an intending woman should also apply to the husband.Also Read | Wife’s demand to separate from widowed mother-in-law is cruelty: Calcutta High CourtThe petitioners’ counsel pointed out that the division bench had held that the benefit of the legal age range continued until an intending woman turned 51. On the same reasoning, the petitioners sought extension of the benefit to the husband until he turned 56.Story continues below this adEarlier rulingIn Rajitha P V, the division bench considered whether the expression “between the age of 23 to 50 years” excluded an intending woman after she completed 50 years.It had held that the upper limit was included and observed that the word “to” before the final number indicated that the final number formed part of the legal range. It consequently held that the intending woman remained eligible throughout her 50th year, with eligibility ceasing when she turned 51.The division bench also said that legal interpretation was not simply an abstract exercise because its consequences could directly affect people’s rights and lives. It said an interpretation that resulted in the irreversible loss of the opportunity to have a child through surrogacy required a higher level of scrutiny.Court applies same yardstickThe high court accepted the petitioners’ argument that the same approach should apply to the husband. “In my opinion, the same yardstick requires to be applied as regards the case of the husband also,” the judge said. The court noted that the husband had not yet attained 56 years and also took into account the certificate showing that the embryo had been cryopreserved in 2022.Story continues below this adAlso Read | Publisher took Rs 8,000 but ‘never published’ book, Punjab advocate wins Rs 23,000 payoutThe court then disposed of the writ petition by declaring that the petitioners were “also required to be extended the surrogacy services till such time the husband turns ‘56 years’”, following the division bench judgment in Rajitha P V.Vineet Upadhyay is an Assistant Editor with The Indian Express (Digital), where he leads specialized coverage of the Indian judicial system. Expertise Specialized Legal Authority: Vineet has spent the better part of his career analyzing the intricacies of the law. His expertise lies in "demystifying" judgments from the Supreme Court of India, various High Courts, and District Courts. His reporting covers a vast spectrum of legal issues, including: Constitutional & Civil Rights: Reporting on landmark rulings regarding privacy, equality, and state accountability. Criminal Justice & Enforcement: Detailed coverage of high-profile cases involving the Enforcement Directorate (ED), NIA, and POCSO matters. Consumer Rights & Environmental Law: Authoritative pieces on medical negligence compensation, environmental protection (such as the "living person" status of rivers), and labor rights. Over a Decade of Professional Experience: Prior to joining The Indian Express, he served as a Principal Correspondent/Legal Reporter for The Times of India and held significant roles at The New Indian Express. His tenure has seen him report from critical legal hubs, including Delhi and Uttarakhand. ... Read More