Continuity-of-Eligibility Principle in ART/Surrogacy: Age Limit Assessed with Reference to Timely Initiation and Completed Cryopreservation

1. Introduction

In SANGITA RAHA AND ANR. v. THE STATE OF WEST BENGAL AND ORS. (Calcutta High Court, Circuit Bench at Jalpaiguri; decided on 16.04.2026), the petitioners—an intending married couple—approached the Court under writ jurisdiction seeking relief under India’s assisted reproduction and surrogacy regulatory framework.

The factual background is rooted in infertility treatment: after unsuccessful attempts to conceive and failed IVF outcomes, the petitioners opted for a gestational surrogacy pathway. They sought (i) a “Certificate of Medical Indication” under the Surrogacy (Regulation) Act, 2021 and then (ii) an eligibility certificate under Regulation 4(c) of the Surrogacy regime. While the process was initiated when (at least) the wife was within the prescribed age limits, the State opposed issuance of the eligibility certificate on the ground that the couple had crossed the age threshold by the time the eligibility certificate was considered.

The core issue before the Court was therefore narrow but consequential: whether the State could refuse the eligibility certificate solely because the intending couple (or one spouse) crossed the upper age limit after initiating the statutory/clinical process—particularly where embryos had already been cryopreserved.

2. Summary of the Judgment

Justice Raja Basu Chowdhury directed the respondent authority (respondent no.2) to issue the eligibility certificate to the petitioners within seven (7) working days.

The Court held that, in the peculiar facts of the case—where the process was initiated within time, and where the embryo had already been successfully cryopreserved—the petitioners should not be denied the benefit of Assisted Reproductive Technology Services (ARTS) merely due to crossing the age limit during pendency/processing.

3. Analysis

3.1 Precedents Cited

(a) Shyamoli Saha & Anr. v. The State of West Bengal & Ors, in WPA/23776/2024

The Court treated this coordinate Bench decision as the principal guiding precedent. It relied on two features reflected in the present judgment:

  • Age-limit flexibility in practice: The coordinate Bench’s approach supported the proposition that strict age cut-offs should not be applied mechanically where the intending couple has already meaningfully entered the ART/surrogacy pipeline.
  • Use of contextual medical-demographic data: The judgment references the observation (based on government-maintained data) that the average age of menopause in India is 46.2 years, underscoring that statutory age thresholds operate in a medically variable field and that individual medical fitness can matter when courts assess arbitrariness or disproportionality.

Importantly, the present Court read Shyamoli Saha as supporting relief even when an upper age limit becomes an obstacle after initiation—especially where denial would render prior lawful steps futile.

(b) Sanchita Ghosh and Anr. v. Union of India in WPA 12154 of 2023

This decision was cited alongside Shyamoli Saha for the broader proposition that an intending couple may be entitled to ARTS despite one party crossing the upper age limit stipulated under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.

By invoking Sanchita Ghosh, the Court reinforced that the age-limit objection is not invariably determinative in writ proceedings—particularly where rigid enforcement would defeat the purpose of the regulatory scheme and impose an inequitable result after substantial compliance and medical intervention.

3.2 Legal Reasoning

  • Source of the age-limit and the State’s role: The State argued it lacked authority to “alter” the age limit. The Court accepted the structural point that the age limit is specified by the Central Government under Section 21(g) of the ART Act, but did not treat that as ending the inquiry. The issue was not “altering” the statute but deciding whether the administrative refusal (in the given facts) was legally sustainable.
  • Timing and “initiation” as a fairness anchor: A decisive factor was that the petitioners initiated the process within the prescribed time (the judgment particularly notes that the wife was within the prescribed limit when the medical indication process was triggered). The Court treated subsequent crossing of the limit—during administrative pendency—as an insufficient basis to deny the benefit altogether.
  • Irreversibility of clinical steps (cryopreservation): The Court emphasized that embryos had been successfully cryopreserved and a medical certificate indicated a fair chance of successful pregnancy upon transfer. Denying eligibility at this stage would not merely enforce an eligibility rule; it would effectively nullify lawful medical steps already taken in reliance on the regulatory pathway.
  • Individual medical fitness and proportionality: The Court noted the medical materials showing the wife was “physically fit” to hold eggs and that the embryo creation/cryopreservation had been successful. Even while acknowledging that success is not guaranteed, the Court found that fairness required allowing the petitioners an opportunity rather than blocking the pathway on a technical age timing issue.
  • Equitable relief in writ jurisdiction: The reasoning is explicitly fact-sensitive (“peculiar facts”), reflecting a writ-court approach that prevents administrative action from operating harshly or unreasonably where applicants have acted diligently but are disadvantaged by processing delay or rigid application at a later stage.

Note: The judgment text contains an internal date inconsistency (the “Certificate of Medical Indication” is stated to be issued on 16th April 2025 although the application is stated to have been made on 26th May 2025). The Court did not treat this as determinative; the operative reasoning turns on timely initiation and subsequent completion of cryopreservation before refusal.

3.3 Impact

  • Continuity-of-eligibility approach: Administrations may have to evaluate eligibility with sensitivity to when the process was initiated and what clinical steps have already been completed, rather than applying age limits as a hard bar at the final certification stage.
  • Reduced arbitrariness from administrative delay: The judgment implicitly discourages outcomes where applicants lose eligibility merely because the State took time to process certificates. This may encourage time-bound decision-making and more reasoned orders.
  • Strengthening reliance interests in ART pathways: Where embryos are cryopreserved, intending couples incur significant emotional, physical, and financial costs. This decision recognizes those reliance interests as relevant to judicial review of eligibility denials.
  • Likely case-by-case adjudication: Because the Court repeatedly grounds relief in “peculiar facts,” the precedent is best understood as enabling relief where (i) initiation was timely, (ii) the overage is marginal or occurs later, and (iii) clinical milestones (like cryopreservation) show the process has substantively progressed.

4. Complex Concepts Simplified

  • Assisted Reproductive Technology Services (ARTS): Medical procedures that assist reproduction (e.g., IVF, embryo creation, cryopreservation, embryo transfer).
  • Gestational surrogacy: A surrogate carries a pregnancy where the embryo is created using the intending couple’s gametes (or as permitted) and implanted into the surrogate; the surrogate is not the genetic mother in the typical gestational model.
  • Cryopreserved embryo: An embryo created in a lab and then frozen for later use. This is medically and legally significant because it represents a completed step in the ART process.
  • Eligibility certificate (Regulation 4(c)): A formal certification under the surrogacy regulatory framework that authorizes an intending couple to proceed, typically after verifying statutory conditions (including age).
  • Writ jurisdiction: The High Court’s constitutional power to review administrative action for legality, fairness, and reasonableness, and to issue directions to public authorities.

5. Conclusion

This judgment reinforces a practical rule for ART/surrogacy administration: where an intending couple initiates the statutory process within the prescribed age limit and has progressed to irreversible clinical milestones (such as embryo cryopreservation), subsequent crossing of the age limit during pendency should not, by itself, defeat eligibility.

By following Shyamoli Saha & Anr. v. The State of West Bengal & Ors and Sanchita Ghosh and Anr. v. Union of India, the Court places emphasis on fairness, proportionality, and protection against harsh outcomes caused by timing and administrative delay, while still acknowledging the statutory origin of the age thresholds under the ART Act.