01.09.2026 Court No. 12 Item No.05 Cp FMA No. 951 of 2023 With CAN 1 of 2023 State of West Bengal & Ors. Vs. Sangita Saha & Ors. Mr. Niladri Saha Ms. Tanusree Ghosh …..for the appellants. Mr. Victor Chatterjee Mr. Pramitava Nath Ms. Shreya Bhattacharjee ….for the respondent nos. 1 & 2. 1. As none appears on behalf of the appellants, Mr. Niladri Saha, learned advocate, is engaged by the court to appear for the appellants with a junior of his choice. Let Mr. Saha’s engagement be regularized. 2. The appeal arises out of an order dated July 18, 2023, passed in WPA 15755 of 2023. By the order impugned, the learned court directed the respondent authorities to give a fresh hearing to the writ petitioners on the basis of their application for surrogacy and decide the issue 2 afresh in the light of the observations made in the said order. 3. The State has preferred the appeal on various grounds. First of such ground being that the eligibility criteria under the law could not be extended by the writ court. According to the appellants, the learned Judge misconstrued the provisions with regard to the restriction on age. According to His Lordship, the upper age limit upto which surrogacy could be applied for, was in all probability connected with the capacity of a couple or a woman to raise a child after a particular age. His Lordship held that, in modern times the couple who intended to opt for surrogacy, could not be considered as old. Hence, the restriction of the upper-age limit should be held to be a directory guideline and not an absolute bar. 4. It is argued on behalf of the appellants that the couple has not fulfilled any of the criteria prescribed by law. Apart from the couple having crossed the upper age limit prescribed by the statute, the other parameters were also not satisfied. 5. Mr. Chatterjee, learned advocate for the writ petitioners/respondents, submits that, in view of 3 the special circumstances of the case, the writ court held that the age bar could be treated as directory. In this case, the couple lost a young daughter of around 28 years and as such, they would never be in a position to fulfil all the eligibility criteria prescribed by law. The situation in this case required certain relaxations. 6. Upon adopting a compassionate approach, the learned Single Judge directed reconsideration of the matter, with an observation that the age limit should not be treated as an absolute bar. 7. His Lordship held that, in modern times the life- span of human beings extended much beyond 60 years. Under such circumstances, the age of the couple should not be an impediment. They would be in a position to nurture the child. 8. The Chairperson, State Appropriate Authority under ART & Surrogacy Act, 2021, had rejected the appeal of the writ petitioners on two grounds :- First, that they had crossed the age bar as prescribed under Section 4(iii)(c)(1) of the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as ‘the said Act’). Second, that the couple had to rely on a donor OOCYTE, which was not permissible in law. 4 9. We have considered the submissions of the respective parties. 10. With regard to the second impediment of using donor OOCYTE, we find that the law has undergone a change and even if one of the intending couple provides their gamete, that would suffice. Whether the husband would be in a position to supply a healthy gamete is premature issue, as they do not fulfil the eligibility criteria with regard to age. Admittedly the wife has undergone surgery leading to surgically induced menopause. 11. With regard to the age bar, we find that this is an eligibility criteria prescribed by law. Section 4(c) of the said Act provides that an eligibility certificate for the intending couple has to be issued separately by the appropriate authority on fulfilment of certain conditions, which include that the intending couple must be between 23 to 50 years in case of female and between 26 to 55 years in case of male, on the date of certification. In this case, the certification could not be granted to the writ petitioners. When the application was made, the lady was 54 years old and the husband was 57 years. We are empathetic to the situation, but the interpretation given by His Lordship with regard to 5 the age limit is not correct. The restriction of age is not a guideline. It is a statutory condition, to be fulfilled by an intending couple, before they are inducted into the process. The legislature fixed the age limit upon taking into consideration medical, social and welfare factors. The age limit is a policy of government for the purpose of regulating the process of surrogacy. Today, the gap between the age of the couple and the upper limit prescribed by law is significant, i.e., almost 5 years. The process had not started before the Act had come into force. The Hon’ble Apex Court held that the age bar could not be applied retrospectively, in the matter of Arun Muthuvel vs Union of India reported in 2025 INSC 1209. In the said case the process had started prior to the promulgation of the Act, unlike the present one. 12. Had the couple crossed the age limit by a few months or a year, on account of pending formalities, we would still be in a position to request the authority to medically examine the reproductive health of the gamete of the husband and reconsider the case. 13. In this case, the situation is different. The lady has undergone surgery. They have to depend on a donor. Today, the lady is almost 57 years and her 6 husband is 60 years. At this stage, any relaxation of the age bar would amount to the court rewriting the statute. State is under a constitutional obligation to protect the children and ensure that each child is taken care of and nurtured properly. The rights of children have been recognized by various laws. A child has a right to proper care, emotional and physical safety, education, etc. Thus, by imposing the restriction, the State has by way of a policy ensured that a child should not be born through surrogacy to any intending couple who had reached an advanced age and parenting of a new born would be a difficult task. The emotional and physical health of the parents have to be stable in order to bring up a new born and meaningfully nurture her/him till the child becomes independent. Thus, reproductive right has been balanced with the rights of the child and duties towards the child. 14. Under such circumstances, the order impugned is set aside. 15. Accordingly, the appeal is allowed and the connected application being CAN 1 of 2023 is disposed of. 16. However, there shall be no order as to costs. 7 17. Parties are directed to act on the basis of the server copy of this order. (Shampa Sarkar, J.) (Arjun Ray Mukherjee, J.)