N Ananth venkadesh order /It is made clear that this order will not be cited as a precedent in any other case where the parties have proceeded further with the surrogacy process without getting the parental order. On the peculiar facts of this case and on considering the fact that the procedure involved is yet to peculate into the system and there is lack of awareness, this case is taken as a  test case and orders are passed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.07.2025

CORAM:

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

W.P.Nos.26975 & 27020 of 2025

 

1. X

2. Y                                                                            ..   Petitioners 1 and 2 in                                                                                                      W.P.No.26975 of 2025/                                                                                                       petitioners  2 and 3                                                                                                in WP.No.27020 of 2025

G.G. Hospital

represented by its

Managing Director

Dr.Priya Selvaraj,

No.6E, Nungambakkam

High Road, 1A,

Dr. Thirumurthy

Nagar, 1st Street, Chennai 600 034                  ..      1st petitioner in WP.27020                                                                             of 2025       

Vs.

 

1.     The State of Tamil Nadu,

represented by its Principal Secretary

to Government, Health and Family

Welfare Department, Secretariat,

Chennai.

2.     The Director,

Directorate of Medical and Rural

Health Service,

No.359, DMS Complex, 361,

Anna Salai, Chennai 600 006.

3.     The Joint Director of Health Service/

District Medical Board,

O/o. Joint Director of Health Service,

No.359, DMS Complex, 361,

Anna Salai, chennai 600 006.

4.     Joint Director of Health Services,

District Medical Board,

District Collector Office,

Grand Southern Trunk Road,

Chengalpattu, Vembakkam,

Tamil Nau 603 111.

5.     Z                                                   ..   Respondents in                                                                               both WPs

         

PRAYER in W.P.No.26975 of 2025:  Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus to direct the respondents 1 to 4 to condone the petitioners procedural lapse in not obtaining a parental order mandated under section 4(iii) (a)(II) of the Surrogacy (Regulation) Act, 2021 with respect of the ongoing pregnancy of the 5th respondent who is the surrogate mother to the petitioners and further to issue a parental order in favour of the petitioners in the best interest of the unborn children.

PRAYER in W.P.No.27020 of 2025:  Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus to direct the respondents to condone  the procedural lapse in verification of the parental order mandated under section 4(iii) (a) (II) of the Surrogacy (Regulation) Act, 2021 with respect of the ongoing pregnancy of the 5th respondent who is the surrogate mother to the 2nd and 3rd petitioners and  to further issue  a parental order in favour of the 2nd and 3rd petitioners in the best interest of the unborn children.

 

                    For Petitioner in   both   WPs  :    Ms.A. Shabnam Banu

                    For Respondents in both WPs  :   Mr.  E. Sundaram, GA

                                                 for R1 to R4

         

 

O R D E R

         

      W.P.No.26975 of 2025 has been filed by the commissioning/intending parents to direct the respondents 1 to 4 to condone the procedural lapses on the part of the petitioners in not obtaining a parental order mandated under section 4(iii)(a)(II) of the Surrogacy (Regulation) Act 2021 ( for brevity,   hereinafter referred to as ‘Act’).

 

          2. W.P.No.27020 of 20205 has been filed by the hospital along with the commissioning parents/intending parents seeking for a similar relief.

 

          3. The case of the petitioners is that they got married on 15.11.2015.  The 1st petitioner was diagnosed with  Endometrial Adenocarcinoma in the year 2016 and hence, she  underwent multiple treatments.  The 1st petitioner was neither able to conceive naturally, nor IVF proved to be successful.  Hence, the 2nd petitioner approached the treating hospital during the year 2021 to  discuss the treatment options for  her medical condition.  The 1st petitioner was referred to an Oncologist. She underwent total hysterectomy on 17.11.2021 which rendered the 1st petitioner medically unit to conceive  or carry children.

 

          4. In the light of the above development, the 1st and 2nd petitioners decided to opt for gestational surrogacy.

 

          5. The petitioners were informed by the treating hospital that as per the Act, the surrogate mother was required to be  genetically related to the intending couple   The petitioners found that the said condition was running contrary to Section 4(ii)(a) of the  Act and therefore, they approached the Apex Court seeking for clarification.  Ultimately, the Union of India issued a clarification and the petitioners were directed to approach the District Medical Board and State Appropriate Authority for issuance of Essentiality Certificate and complete the related procedures as prescribed under the Act to  avail surrogacy services.

 

    6. Accordingly, the petitioners submitted an application to the District Medical Board and the State Appropriate Authority on 16.05.2023 to initiate the surrogacy procedure.  Pursuant to the same, the petitioners were issued with  Form 17 and Form 17-B on 01.08.2023.  Upon completion of formalities, the treating hospital proceeded with the embryo transfer on 06.11.2023, however on 17.11.2023, it was confirmed that the embryo transfer was unsuccessful. 

 

          7. The petitioners, therefore, decided to  pursue surrogacy once again by using the second petitioner’s gametes and donor oocytes.  In the meantime, the Act came into force and the Rules were also framed.  The relevant  provision effectively  bar the use of the donor gametes and donor oocytes in gestational  surrogacy.  This notification was challenged before the Apex Court and the Apex Court was pleased to pass an order dated 06.02.2024 permitting the petitioners to  proceed with the surrogacy using  donor eggs.  In the light of this permission granted by the Apex Court, the petitioners started the procedure to begin surrogacy.

          8. The relevant certificates and forms that were submitted  and the procedure that was adopted by the petitioners  is tabulated in paragraph 9 of the affidavit filed in support of the writ petition and  for  an easy understanding,  the same is extracted hereunder:

Document Type

issued By

Document No./Certificate No.

Date

Certificate of Essentiality (Section 4(iii)(a)(I))

Director, IOG & Govt. Hospital for Women & Children, Egmore

NA

02.02.2024

Application Form

(Form 1)

Submitted to Appropriate Authority

NA

29.08.2024

Consent of Surrogate Mother & Agreement (Form 2)

Surrogate Mother & Appropriate Authority

NA

14.11.2024

Certificate of Eligibility for Intending Parent (Form 17)

Appropriate Authority

08/3171

A2/2024

14.11.2024

Medical Fitness Certificate of Surrogate Mother

GG Hospital

NA

09.12.2024

Altruistic  Surrogacy Agreement

Executed between Petitioners and Surrogate Mother

NA

14.12.2024

Certificate of Eligibility for Surrogate Mother (Form 17B)

Appropriate Authority

S.M. 012/2024

16.12.2024

Insurance Policy – Care Health Insurance

Care Health Insurance Ltd.

95993160

22.01.2025 to 21.01.2028

Insurance Policy – Bandhan Life Insurance

Bandhan Life Insurance Ltd.

TREETM737459681

21.01.2025 to 20.01.2028

 

          9. Section 4(iii) (a)(I) of the Act mandates  obtaining   parental order from the Court of Magistrate of the First Class or above before the surrogacy process.  However, the  treating hospital failed to adhere to this mandatory procedure and straight away went ahead with the embryo transfer, as a result of which, the surrogate mother became pregnant.  By the  time, this  defect was identified, the surrogate mother was 11 weeks pregnant.  This was informed  to the petitioners by the hospital  through communication dated 30.05.2025.  Thus, the procedure adopted became illegal and apart from the petitioners, the surrogate mother  faced predicament  since she became pregnant with twins and if the process is not approved, the surrogate mother has to  give birth to the child and also take care of the child.  It is under these circumstances, the present writ petitions came to be filed before this Court.

 

          10. When these writ petitions came up for hearing on 23.07.2025, this Court directed the learned Govt. Advocate appearing on behalf of the respondents 1 to 4 to get a position note from the Director of Medical and Rural Health Services.  Accordingly, a position note  has been filed before this Court.  On  carefully  going through the same, it is seen that the treating hospital is a registered and licensed surrogacy clinic and they have  proceeded further with the surrogacy  process without obtaining a parental order and  the certificate of essentiality and thereby  had violated the rules framed under the surrogacy Act.  As per the position note, the surrogate mother is presently 17 weeks  pregnant with twins. According to the learned counsel appearing on behalf of the 5th respondent  who is the surrogate mother, she is  presently 19 weeks pregnant with twins.

         

          11. During the course of hearing, the format of one of the parental order passed by a competent Court was placed before  this Court.  On carefully going through the same, it is seen that the concerned Court satisfies  itself that   intending  parents do not  have any child either born naturally or through  adoption or through surrogacy and due to the medical condition are incapable of having  a child naturally and therefore the same necessitates surrogacy.  The court also satisfies itself that the  lady who is going to bear the child is willing to become  the surrogate mother for  that couple.  Apart from that, the concerned Court satisfies itself that in case, the surrogate  mother is married, consent of the husband is also taken.  The surrogate mother must also give a statement to the effect that she will not claim the parental custody of the child/children  so  born in future and that the  birth certificate can be granted in favour of the  intending parents.  The intending parents must also give a statement to the effect that they will not  abandon the  child/children so born,  for any reasons whatsoever.  All the parties must also undertake that there is no commercial surrogacy involved in the matter.  The court must also  be satisfied that  insurance coverage has been given to the surrogate mother.  Apart from that, the court must also be satisfied that the intending parents have been granted certificate of medical  indication and certificate of eligibility  by the Medical Board.  After satisfying itself regarding  all these requirements, the parentage order is passed and  the court declares that the intending parents will be declared as a lawful parent of the child/children to be born and  the  order will be treated as the  birth affidavit after the child is born.

 

          12. A careful reading of section 4(III)(a)(ii) of the Act makes it clear  that  a parental order is mandatory which has to be passed by a Court of Magistrate of the First Class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be  the birth affidavit  after the surrogate child is born.  Thus the Court merely satisfies itself regarding the procedure  followed and also satisfies itself  after examining the intending parents and the surrogate mother.

 

          13. The treating hospital, ought to have complied with the mandatory requirement  and if  for some strange reasons, the hospital thought that  permission granted by the Apex Court  in the application filed by the petitioners can be construed as a parenting order,  that is clearly a mistake on the part of the   treating hospital and from the position note, it is made clear that already  action has been initiated against  the  hospital for  violating the Rules and Regulations of the Act.

 

          14.On the one hand, the interest of the intending parents is involved and on the other hand, the right and  autonomy of the surrogate mother is  hanging in a balance.  Apart from that, the surrogate mother is now 17 weeks/19 weeks pregnant with twins.  Therefore,  it also involves the right of the unborn child.   Under such circumstances, when the same is pitted against the non compliance of the  mandatory procedure under the Act, this Court  has to necessarily lean in favour of protecting  the interest of the petitioners/intending parents, surrogate mother and the  unborn child.  This Court must also exercise its Parens Patriaa jurisdiction in a case of this nature.

 

          15. In view of the above, if this Court is able to examine the petitioners/intending parents and the surrogate mother and record their statements and ensure that all the other procedures have been followed, this Court can pass the parental order.  This is,  in view of the fact that the concerned provision apart from  giving the jurisdiction to the Magistrate of First Class, has also  give the jurisdiction for  Courts above that Court.  Obviously,  in a fit case,  High  Court can also  pass such orders in the interest of the parties concerned.  The vast powers that are available to this Court under Article 226 of Constitution of India  can also be exercised in a fit case of this nature.

 

          16. In the upshot of the above discussion, this Court is inclined to pass the parental order after examining the petitioners/intending parents and the 5th respondent/surrogate mother and after satisfying itself that all the other procedures are followed.  The procedure that has been followed in this case has already been tabulated and extracted supra.

 

          17. To enable this court to pass an order, the petitioners/intending parents and the 5th respondent  who is the surrogate mother  are directed to be present before the Additional Master III on 01.08.2025 at 2.15 p.m.

 

          18. The Additional Master III shall proceed further to examine the parties and record their statements.  The same shall be placed before this Court and will thereafter, pass the parental order.

 

          19. It is made clear that this order will not be cited as a precedent in any other case where the parties have proceeded further with the surrogacy process without getting the parental order. On the peculiar facts of this case and on considering the fact that the procedure involved is yet to peculate into the system and there is lack of awareness, this case is taken as a  test case and orders are passed.

 

          20. It is also made clear that in so far as the action that  has been  initiated against the hospital by the authorities, it is left open to the authorities to issue notice to the hospital  and the hospital can submit their explanation to the authorities.  The notice issued to the hospital and the explanation given by the hospital shall be placed before this court.  Considering  the same,  orders will be passed by this Court while disposing of these writ petitions.

 

         

 

 

           21. Post these writ petitions under the caption for passing final orders on 07.08.2025 at 2.15 .p.m.

 

 

29.07.2025

msr

 

Office to Note:

 

(i)    In W.P.No.26975 of 2025, the names of the 1st petitioner and 2nd petitioner shall be mentioned as  ‘X’ and ‘Y’ respectively and  the name of the 5th respondent shall be mentioned as ‘Z’ in the order copy which is uploaded in the website.

 

(ii)   In W.P.No.27020 of 2025, the names of the 2nd and 3rd petitioners shall be mentioned as  ‘X’ and ‘Y’ respectively and  the name of the 5th respondent shall be mentioned as ‘Z’ in the order copy which is uploaded in the website.

 

(iii)  Accordingly, the names of the 1st and 2nd petitioners in W.P.No.26975of 2025 and 2nd and 3rd petitioners in W.P.No.27020 of 2025  and the name of the  5th respondent in both the writ petitions shall be redacted and it shall be mentioned as ‘X’ , ‘ Y ‘and ‘Z’  respectively in the  order copy which is uploaded in the website.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

To

 

1. The State of Tamil Nadu,

represented by its Principal Secretary

to Government, Health and Family

Welfare Department, Secretariat,

Chennai.

2. The Director,

Directorate of Medical and Rural

Health Service,

No.359, DMS Complex, 361,

Anna Salai, Chennai 600 006.

3. The Joint Director of Health Service/

District Medical Board,

O/o. Joint Director of Health Service,

No.359, DMS Complex, 361,

Anna Salai, chennai 600 006.

4. Joint Director of Health Services,

District Medical Board,

District Collector Office,

Grand Southern Trunk Road,

Chengalpattu, Vembakkam,

Tamil Nau 603 111.

 

 

 

 

 

 

 

 

 

 N. ANAND VENKATESH, J.

msr

 

 

 

 

 

 

W.P.Nos.26975 & 27020 of 2025

 

 

 

 

 

 

 

29.07.2025