Calcutta HC Relief In Surrogacy Case
The Calcutta High Court has directed the West Bengal authorities to issue a surrogacy eligibility certificate to a married couple who had crossed the prescribed age limit after they had already begun the Assisted Reproductive Technology process and successfully cryopreserved embryos. Justice Raja Basu Chowdhury passed the direction in Sangita Raha & Anr. v. The State of West Bengal & Ors., WPA 481 of 2026, and ordered the respondent no. 2 to issue the certificate preferably within seven working days.
The petitioners told the Court that they were married according to Hindu rites and customs on February 21, 2019 and that the marriage was later registered on May 13, 2025 under sub-Rule 4 of Rule 15 of the West Bengal Hindu Marriage Registration Rules, 2010, with effect from the date of marriage. They said that although they were a happily married couple, they had been unable to extend their family because petitioner no. 1 could not conceive naturally. Considering their advanced age, they availed the benefits of Assisted Reproductive Technology, but despite consulting infertility specialists and attempting IVF, they did not get the desired result and therefore decided to pursue gestational surrogacy.
According to the order, the petitioners submitted an application on May 26, 2025 to the Chief Medical Officer of Health and Chairman of the District Medical Board, Darjeeling, seeking a “Certificate of Medical Indication” as an intending couple under the Surrogacy (Regulation) Act, 2021. The Court recorded that at the time of making the application, petitioner no. 1 was within the age limit prescribed by the Assisted Reproductive Technology (Regulation) Act, 2021, while petitioner no. 2, the husband, was marginally beyond the prescribed age limit. The order further records that the certificate of medical indication for surrogacy was issued by the CMO of Health, Darjeeling on April 16, 2025, after which the ovum was picked up on November 29, 2025 and the cryopreserved embryo was retained on December 16, 2025. The Court also noted a certificate of Fetus IVF Centre stating that two cryopreserved embryos of the petitioners were in good condition and that transfer to a surrogate mother’s uterus carried a fair chance of successful pregnancy.
The application for issuance of an eligibility certificate under Regulation 4(c) of the Surrogacy Act remained pending before the Health Secretary from February 5, 2026. When the writ petition was moved on April 8, 2026, the Court called for a report. Though no report was filed, the State placed a “Parawise Reply” on record. The only objection taken in that reply was that the intending couple had crossed the eligibility age and that the State had no authority to alter the prescribed age limit.
Justice Raja Basu Chowdhury observed that the age limit is specified by the Central Government under Section 21(g) of the ART Act. The Court referred to findings of a coordinate Bench in Shyamoli Saha & Anr. v. The State of West Bengal & Ors., WPA 23776 of 2024, relied on by the petitioners, where it had been noted on the basis of government-maintained data that the average age of menopause of females in India is 46.2 years. The Court recorded that when the application for certificate of medical indication for surrogacy was made, petitioner no. 1 was 49 years old and therefore within the prescribed age limit under Regulation 4(c) of the Surrogacy Act, though she had crossed the age limit by the time the eligibility certificate was sought. The Court further noted that the medical and cryopreserved reports showed that petitioner no. 1 was physically fit to hold eggs and that the embryos had been successfully cryopreserved.
The Court observed that even if the process were permitted to continue, there was no guarantee of success. It nevertheless held that the petitioners had already taken considerable steps in their effort to have a child and should not be made to suffer in the peculiar facts of the case. The Court noted that the initiation application was within the prescribed time and that petitioner no. 2 was only marginally over-aged. It also observed that the petitioners should be given an opportunity to become parents, especially when the embryos had been successfully cryopreserved and there was a fair chance of a successful pregnancy.
The single judge also referred to Shyamoli Saha and Anr. and Sanchita Ghosh and Anr. v. Union of India, WPA 12154 of 2023, and recorded that those decisions had held that a couple would be entitled to the benefit of Assisted Reproductive Technology Services even if one of the parties had crossed the upper age limit stipulated under Section 21(g) of the ART Act. The Court held that the present matter was no different.
Holding that the petitioners should be permitted to take the benefit of ARTS, the Court directed respondent no. 2 to issue the eligibility certificate as expeditiously as possible, preferably within seven working days from the date of the order. It also directed the parties to communicate the order to respondent no. 2 and said that the respondent would act on the basis of the server copy downloaded from the official website of the Court. With those observations and directions, the writ petition was disposed of.
