54-year-old woman from Nashik has been allowed to pursue surrogacy by Bombay HC.
MUMBAI: Bombay HC has allowed a 54-year-old Nashik woman to opt for surrogacy despite the legal age limit of 50 for women, ruling that her 53-year-old husband is within the limit of 55 for men. Of all the rights of women, the greatest is to be a mother,” said the Bombay high court, quoting Chinese writer Lin Yutang, while allowing a 54-year-old woman to opt for surrogacy as her 53-year-old husband is within the limit of 55 for men. He invoked their fundamental right to life and the Supreme Court’s recognition of a woman’s reproductive choice as an integral part of her personal liberty under Article 21.
The couple, through their advocate Utkarsh Pondkule, argued that their physical or mental fitness should not prevent them from pursuing surrogacy, which they said was their only option to become parents. Any such challenge when made would be considered holistically “including the study of impact of age’’ in child rearing at an advanced age, the HC said. The couple had moved court after being denied permission for surrogacy as an ‘intending couple’, reports Swati Deshpande. Justice Dangre observed that the surrogacy law was aimed at “prohibiting potential exploitation of surrogate mothers and to protect the rights of the children born through surrogacy”. the court factored in judgments cited by amicus curiae (friend of court) senior counsel Sharan Jagtiani While giving permission to the couple. The court also did not accept Centre’s justification of linking the age-bar to problems associated with ‘advanced age’ parenting. The court however, clarified that it did not rule on the validity of the provision that prescribes the maximum age limit. The Centre, through ASG Singh, had argued that the maximum age limit is to balance the interests of the parents and the child, considering the trend of delayed marriages in India. He argued that rights and welfare of the unborn child should not be neglected in the process of fulfilling the desire of a couple to become parents, as the child so born, also has a right to enjoy parental care on a par with the children born out of normal reproduction.
“It should always be the endeavour of a court to adopt a purposive interpretation and ensure that the object behind a legislation is achieved,” said Justices Bharati Dangre and Ashish Chavan in their judgment on Wednesday.