Only married Indian heterosexual couples between the ages of 25 to 50 (for women) and 26 to 55 (for men), who are infertile and childless, are permitted to access surrogacy. Widowed or divorced women between the ages of 35 and 45 may also qualify under narrow exceptions. The ART Act further restricts access to reproductive technology based on age, consent, and health standards, with women above 50 and men above 55 generally excluded.

While the legislative intent appears to be safeguarding the interests of women and children, it is increasingly clear that the narrow eligibility criteria are excluding large segments of society—single men, live-in partners, LGBTQIA+ individuals, and even willing couples who may not meet arbitrary age cutoffs. In such a climate, courts have become the last refuge for individuals seeking reproductive justice.

A string of judicial interventions in 2025 underscores this tension. In a landmark case, the Calcutta High Court permitted a 61-year-old retired judge to undergo IVF with his 49-year old wife, despite exceeding the male age limit under the ART Act. The court emphasized individual liberty, medical feasibility, and the constitutional right to parenthood. Similarly, the Telangana High Court, showing humane discretion, allowed a 49-year-old woman to retrieve her eggs just days before turning 50, protecting her reproductive opportunity from being lost due to bureaucratic delays.

However, not all courts have taken such a liberal view. The Madras High Court, in a significant judgment, upheld the statutory age cap for women under the ART Act, citing child welfare, biological risk, and parental responsibility. Likewise, the Bombay High Court denied surrogacy permission to a divorced woman with a living child, affirming the Act’s exclusion of individuals who already have biological offspring.

On the enforcement front, regulatory compliance is tightening. In a notable crackdown, authorities in Gurgaon raided an illegal IVF and surrogacy centre in July 2025, marking the first FIR in Haryana under the new regime. This indicates that while courts are responding to individual pleas, the State is stepping up efforts to ensure adherence to procedural norms and ethical safeguards.

Yet, these cases also reveal a deeper judicial unease with legislative rigidity. Courts have increasingly voiced concern about the lack of flexibility in the law, which fails to account for medical exigencies, modern family structures, and constitutional rights to autonomy and dignity. The Supreme Court, currently hearing petitions challenging the upper age limits and exclusionary clauses of the ART and Surrogacy Acts, has yet to deliver a final verdict, but its interim refusal to grant blanket relief reflects cautious deference to legislative competence.

Nonetheless, the need for reform is undeniable. While the intent of the legislation is laudable—protecting poor women from exploitation and preserving child welfare—its effect has been exclusionary and often arbitrary. A more inclusive and nuanced framework must evolve—one that accommodates medical opinion, respects reproductive autonomy, and aligns with India's constitutional vision of equality and personal liberty.

Conclusion

India stands at a critical juncture in regulating reproductive technologies. While the legislature seeks to impose ethical order, the courts are increasingly called upon to safeguard individual rights. What is required is a balanced approach—one that protects the vulnerable without excluding the willing. Parliament must now consider amending these laws to expand access, ensure procedural fairness, and reflect the pluralism of modern Indian society. Until then, judicial discretion remains the only safeguard for those whose dreams of parenthood are caught in the crossfire of overbroad restrictions.