[Cites 9, Cited by 0]
Gauhati High Court
Page No.# 1/ vs Union Of India And 5 Ors on 18 December, 2025
Page No.# 1/11
GAHC010282542023
2025:GAU-AS:17578
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7348/2023
SEEMA CHAKRABORTY AND ANR
W/O- BHASKAR BHATTACHARJEE @ BASHKAR BHATTACHARJEE,
R/O- WARD NO. 12, SILCHAR TOWN,
P.S.- SILCHAR SADAR,
DIST.- CACHAR, ASSAM.
2: BHASKAR BHATTACHARJEE @ BASHKAR BHATTACHARJEE
S/O- LATE SAMARESH KUMAR BHATTACHARJEE
R/O- WARD NO. 12
SILCHAR TOWN
P.S.- SILCHAR SADAR
DIST.- CACHAR
ASSAM
VERSUS
UNION OF INDIA AND 5 ORS
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SOUTH BLOCK, NEW DELHI- 110001.
2:MINISTRY OF HEALTH AND FAMILY WELFARE
REPRESENTED BY ITS SECRETARY
UNION OF INDIA
NIRMAN BHAWAN
C WING
NEW DELHI- 110001.
Page No.# 2/11
3:STATE OF ASSAM
REPRESENTED BY ITS CHIEF SECRETARY OF GOVERNMENT
SECRETARIAT
DISPUR- 781006.
4:THE SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
SECRETARIAT
DISPUR- 781006.
5:THE DIRECTOR
ASSAM STATE MEDICAL COUNCI
Advocate for the Petitioner : MR H R A CHOUDHURY, U U KHAN,MR A AHMED,MR. I U
CHOWDHURY,MR. A AHMED
Advocate for the Respondent : DY.S.G.I., MRS. A GAYAN,SC, HEALTH,GA, ASSAM
BEFORE
HON'BLE THE CHIEF JUSTICE ASHUTOSH KUMAR
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioners : Mr. A. Ahmed, learned Adv.
For the Respondents : Ms. A. Gayan, learned CGC.
Ms. R. B. Bora, learned GA.
Date on which judgment is reserved : 12.12.2025
Date of pronouncement of judgment : 18.12.2025
Whether the pronouncement is of the
operative part of the judgment : No
Whether the full judgment has been pronounced : Yes
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JUDGMENT & ORDER (CAV)
Date:18-12-2025
(Arun Dev Choudhury, J)
1. Heard Mr. A. Ahmed, learned counsel for the petitioners and Ms. A.
Gayan, learned Central Government Counsel, as well as Ms. R. B. Bora, learned
Government Advocate, Assam, for the respondents.
2. The challenge is directed both against the applicability of the age
eligibility prescribed under Section 4 (iii) of the SURROGACY (REGULATION) ACT,
2021 (hereinafter referred to as the Act, 2021) and the amendment dated 14-3-
2023 to Form No. 2 under Rule 7 of the of the Surrogacy (Regulation) Rules, 2022,
which regulates the use of donor gametes.
3. The facts which are necessary for proper adjudication of the present case
in nutshell are that the petitioners, a married couple faced with infertility issues
went for extensive medical efforts including IVF technology, which failed to
bestow them blessings of parenthood for which, they finally decided to go for
surrogacy; the semen of the petitioner No.2 was collected for initiating the
process of surrogacy. However, during the said process, the Act 2021 was
enacted on 25.12.2021, which mandated specific permission and certification to
opt for Surrogacy.
4. Finding no alternative, the petitioners approached this Court by filing
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WP(C) No. 7025/2022, contending that the requisite statutory mechanism for
enabling surrogacy had not been constituted till then. Also argued that the
Central/State Government has not formed any Board to function as "Appropriate
Authority" as required under Section 35 of the said Act, 2021, which issues
certificates as required under Section 4 (iii)(a) of the said Act before initiating any
procedure for surrogacy.
5. The aforenoted writ petition was disposed of by the learned Single Judge
on 23.01.2023, permitting them to try the same in any other State. Accordingly,
though the petitioners again initiated the surrogacy procedure on 01.02.2023, it
also failed. Thereafter, the Central Government issued a Notification dated
14.03.2023, which prevents the use of donor sperm to avail a surrogacy
procedure by a married woman, excluding single women, with an exception in
respect of widows or divorcees.
6. Accordingly, the petitioners have filed the present writ petition invoking
the extraordinary jurisdiction of this Court under Article 226 of the Constitution of
India, assailing the refusal of the competent authorities to permit them to pursue
surrogacy under the said Act, 2021, and the Surrogacy (Regulation) Rules, 2022.
7. As recorded hereinabove, the factual background is largely undisputed.
The petitioners suffer from medically certified conditions, rendering natural
conception impossible. They had earlier attempted surrogacy pursuant to an
order of this Court whereby the Court permitted them to do so in another State, in
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the absence of the establishment of the authority under the Act, 2021 in the State
of Assam.
8. The said attempt, however, failed for medical reasons. On the date when
the amendment dated 14.03.2023 came into force, no surrogacy process of the
petitioners was continuing, the earlier attempt having already failed. In the
meantime, the petitioners crossed the upper age limit prescribed under Section 4
(iii)(b)(I) of the Act, 2021.
9. When the petitioners, thereafter, sought fresh permission to initiate
surrogacy, the authorities declined the request on the grounds of statutory
ineligibility and non-compliance with the amended Form-2.
10. The petitioners contended that the impugned action violates their
fundamental rights under Articles 14 and 21 of the Constitution of India.
11. It is urged that reproductive autonomy is an integral facet of personal
liberty and dignity; that the petitioners were eligible when they first attempted
surrogacy; that the failure of the process was involuntary, and that the
subsequent statutory changes cannot be applied to extinguish their rights to
parenthood permanently. The amendment to Form-2 is further assailed as
discretionary, inasmuch as, donor gametes are permitted for specific categories
of single women but not for married couples.
12. The relevant statutory provisions of Section 4 (iii)(b)(I)of the Act, 2021 read
thus:
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(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken,
performed or initiated, unless the Director or in-charge of the surrogacy clinic and
the person qualified to do so are satisfied, for reasons to be recorded in writing, that
the following conditions have been fulfilled, namely:--........................................
(b) The surrogate mother is in possession of an eligibility certificate
issued by the appropriate authority on fulfilment of the following
conditions, namely:--
(I) No woman, other than an ever married woman having a child of
her own and between the ages of 25 to 35 years on the day of
implantation, shall be a surrogate mother or help in surrogacy by
donating her egg or oocyte or otherwise.
13. The relevant provision of the Notification dated 14.03.2023 reads as follows:
2. In Form 2 under rule 7 of the Surrogacy (Regulation) Rules, 2022, the
existing Para 1 (d) stands omitted and shall be substituted as under:-
1.(d)(I) Couple undergoing Surrogacy must have both gamete from the
intending couple & donor gametes is not allowed;
(II) Single woman (widow/divorcee) undergoing Surrogacy must use self
eggs and donor sperms to avail surrogacy procedure.
14. There can be no quarrel with the proposition that the right to make
decisions relating to reproduction and parenthood forms part of personal liberty
under Article 21 of the Constitution of India, as recognised in Suchita Srivastava &
Anr. Vs. Chandigarh Administration reported in [(2009) 13 (ADDL.) S.C.R 989];
however, it is equally settled that the fundamental rights are not absolute and are
subject to reasonable restrictions imposed by law.
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15. The constitutional enquiry, therefore, is not whether a right exists but
whether the impugned restrictions are reasonable, non-arbitrary, and
proportionate.
16. Prior to the enactment of the statute, surrogacy in India operated in a
largely unregulated space. The Parliament, in its wisdom, chose to replace the
regime with a structured framework prescribing eligibility conditions, procedural
safeguards, and regulatory oversight. The Court must accord substantial
deference to such legislative policy, particularly in areas involving complex socio-
medical considerations.
17. Section 4(iii)(b)(I) of the Act, 2021 prescribes age eligibility as a condition
precedent for intending couples. Age-based classification has long been
recognised as a valid basis of legislative differentiation.
18. We have given our thoughtful consideration to the materials on record
and have heard the learned counsel for the parties.
19. The Act, 2021, is a comprehensive legislative measure enacted after
extensive deliberation to address ethical concerns, prevent exploitation of
surrogate mothers, ensure transparency, and safeguard the interests of children
born through surrogacy.
20. The Apex Court reiterated that a classification would withstand scrutiny
under Article 14 of the Constitution of India if it is founded on an intelligible
differentia and bears a rational nexus with the object sought to be achieved.
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21. In the context of surrogacy, age limits are clearly linked to the concerns of
paternal capacity, health, longevity, and long-term welfare of the child. The
provision, therefore, cannot be characterised as arbitrary or irrational. The
petitioners admittedly crossed the upper age limit before seeking fresh permission
under the Act, 2021.
22. The contention of the learned counsel for the petitioners that the
petitioners were within the age limit at the time of their earlier attempt does not
advance their case. It is a settled principle that eligibility conditions must be
satisfied on the date when the benefit is claimed, unless the statute expressly
provides otherwise. The failure of the earlier surrogacy attempt, though
unfortunate, does not confer a vested right to re-initiate surrogacy in disregard of
subsequently enacted/amended statutory requirements.
23. The doctrine of legitimate expectation also has no application in the
present case. Legitimate expectation neither can be operated against a statute,
nor can it be invoked to defeat a clear legislative mandate. The Parliament was
competent to prescribe age limits prospectively, and the Act and the Rules in
question do not contain any saving clause exempting persons who had failed in
attempted surrogacy from compliance with the new eligibility criteria.
24. The challenge to the amendment of Form 2 under Rule 7 likewise fails. The
rules and forms framed thereunder are integral to the regulatory scheme
contemplated under the Act, 2021. The restriction on the use of donor gametes
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by a married couple reflects a policy choice aimed at ensuring genetic linkage
between the child and the intending parents, a consideration that the
Parliament was entitled to prioritise.
25. The classification is based on differing social and biological circumstances.
Article 14 of the Constitution of India not only prohibits classification but also
forbids class legislation. So long as the classification is reasonable, the Courts
cannot sit in appeal over legislative policy. [Ref: E. P. Royappa Vs. State of Tamil
Nadu, (1974) 4 SCC 3].
26. The submission that the amendment of Form 2 is inconsistent with Rule 14(a)
is also without merit. Rule 14(a) recognises a specific medical indication for
permitting surrogacy, but it does not confer an unqualified or unconditional right
to employ donor gametes. The regulatory conditions imposed through Form 2
operate within the framework of the Act, 2021 and the Rules, 2022 and cannot
be said to override or nullify the parent statute.
27. The petitioners have placed reliance on the principles enunciated in
Vijaya Kumari S. and Anr. Vs. Union of India reported in [(2025) SCC OnLine SC
2195]. In our view, the said decision does not advance the petitioners' case. The
present case stands on an entirely different footing, being governed by an
express parliamentary enactment. Once the legislature has laid down clear
eligibility criteria, the Courts cannot dilute or carve out exceptions on equitable
considerations unless the provision is shown to be manifestly arbitrary or
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unconstitutional, which is not the case here. In Vijaya Kumari (supra), the process
was ongoing, unlike the present case, which failed before the enactment.
Therefore, such principles of law cannot be made applicable to the given facts
of the present case.
28. The plea of retrospectivity is equally misconceived. The impugned
provisions are not being applied retrospectively; they are being used to a fresh
attempt at surrogacy initiated after the commencement/amendment of the Act,
2021 and the Rules, 2022, as well as the Forms thereof. The mere fact that the
petitioners had earlier attempted surrogacy does not immunise them from
compliance with the law as it stands today, as their surrogacy failed and cannot
be said to be a continuing one.
29. The restrictions also satisfy the proportionality test as articulated in Modern
Dental College v. State of Madhya Pradesh, reported in [(2016)-07-SCC-353].
30. The measures pursue legitimate state interests, bear a rational nexus with
the object of the legislation and cannot be said to be excessive or oppressive.
Individual hardship, however genuine, cannot be a ground to strike down or relax
a statutory policy framed in the public interest.
31. In conclusion, while the Court is not unmindful of the petitioners'
predicament, constitutional adjudication cannot be guided by sympathy alone.
The impugned provisions represent a considered legislative policy and do not
infringe on Articles 14 or 21 of the Constitution of India.
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32. Accordingly, for the reasons recorded hereinabove, it is held that the writ
petition is devoid of merit and, accordingly, the same is dismissed.
33. There shall be no order as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
