http://youtube.com/post/Ugkx2RBbVLa0aiQpNokyXT_mk1JpKlkImpUU?si=f9c3q8TM7eTRw20i [26/06, 10:11] sekarreporter1: *Landmark Madras High Court Ruling on Surrogacy Law: Technicalities Cannot Defeat Parenthood; Detailed Guidelines Issued to Magistrates; All Parentage and Custody Petitions Under the Surrogacy Act to be Decided Within Four Weeks*

[26/06, 10:11] sekarreporter1: http://youtube.com/post/Ugkx2RBbVLa0aiQpNokyXT_mk1JpKlkImpUU?si=f9c3q8TM7eTRw20i
[26/06, 10:11] sekarreporter1: *Landmark Madras High Court Ruling on Surrogacy Law: Technicalities Cannot Defeat Parenthood; Detailed Guidelines Issued to Magistrates; All Parentage and Custody Petitions Under the Surrogacy Act to be Decided Within Four Weeks*

*Senior Advocate Hasan Mohamed Jinnah (Amicus Curiae), Senior Advocate John Sathyan (State Counsel) and Mr. Niranjan Rajagopalan (Counsel for the Petitioners) Appreciated by the Court for Their Valuable Assistance*

A couple from Namakkal district approached the Madras High Court after the Judicial Magistrate dismissed their petition seeking a Parentage and Custody Order for a child to be born through surrogacy. The Trial Court held that the intending mother had crossed the statutory upper age limit of 50 years and that the husband of the surrogate mother had not been examined before the Court. Challenging the order, the couple filed a Criminal Revision Petition before the High Court.

The matter came up for hearing before Justice Shamim Ahmed, who, considering the important questions arising under the Surrogacy (Regulation) Act, appointed Senior Advocate Hasan Mohamed Jinnah as Amicus Curiae to assist the Court.

During the hearing, one of the principal issues before the Court was whether an intending woman who had completed 50 years of age but had not yet attained 51 years would continue to remain eligible under the Surrogacy (Regulation) Act. Another issue was whether the non-examination of the surrogate mother’s husband by the Magistrate could constitute a valid ground to reject a petition seeking a Parentage and Custody Order.

Appearing as Amicus Curiae, Senior Advocate Hasan Mohamed Jinnah submitted that the Surrogacy (Regulation) Act is a beneficial legislation enacted to protect the interests of intending parents, surrogate mothers and children born through surrogacy. He argued that such welfare legislation should receive a purposive and liberal interpretation that advances its object. Mere technicalities should not deprive eligible couples of the opportunity to become parents. He further contended that where two interpretations of a statutory provision are reasonably possible, the interpretation that favours the beneficiaries of the legislation should be preferred. Placing reliance on the judgment of the Division Bench of the Kerala High Court, he submitted that an intending woman continues to remain within the statutory age limit throughout her 50th year and remains eligible until she attains the age of 51 years. He further submitted that once the competent authorities have issued the statutory eligibility certificates, the Magistrate cannot sit in appeal over those certificates or reject the petition on hyper-technical grounds. He also placed before the Court an extensive analysis of the statutory framework, legislative intent and decisions of the Supreme Court and various High Courts. The High Court accepted these submissions and adopted the same interpretation while deciding the case.

Allowing the revision petition, Justice Shamim Ahmed held that a Judicial Magistrate cannot sit in appeal over the decisions of the District Medical Board or the Appropriate Authority regarding the statutory eligibility certificates. The Court clarified that the Magistrate’s jurisdiction is confined to passing appropriate orders relating to the parentage and custody of the child and that, unless the certificates are shown to be ex facie illegal, fraudulent or issued without jurisdiction, their validity cannot be reassessed by the Magistrate.

The Court further held that an intending mother who has completed 50 years of age continues to remain eligible under the Surrogacy (Regulation) Act until she attains the age of 51 years. It also ruled that the Surrogacy Act does not require the Magistrate to examine the husband of the surrogate mother, as his consent is already taken into consideration by the competent authorities while issuing the statutory eligibility certificates. Emphasising that the Surrogacy (Regulation) Act is a beneficial legislation, the Court observed that Magistrates should not adopt hyper-technical approaches that defeat the object of the Act and deprive eligible couples of their right to parenthood.

Accordingly, the High Court set aside the order passed by the Judicial Magistrate and remanded the matter for fresh consideration in the light of the principles and guidelines laid down in the judgment. The Court directed that, upon production of the renewed eligibility certificate by the petitioners, the Trial Court shall dispose of the petition within four weeks. The Court further directed that all Parentage and Custody petitions filed before Judicial Magistrates under the Surrogacy (Regulation) Act shall, as far as possible, be disposed of within four weeks, so that the object of the legislation is not frustrated by avoidable delay.

To ensure uniformity in the implementation of the law, the Court framed comprehensive guidelines governing the jurisdiction and procedure to be followed by Judicial Magistrates while dealing with Parentage and Custody petitions under the Act. The Registrar General of the Madras High Court was further directed to circulate a copy of the judgment to all the Principal District Judges in the State for onward circulation to the Judicial Magistrates concerned, so that the guidelines are uniformly followed throughout Tamil Nadu.

In the order, its recorded that Senior Advocate Hasan Mohamed Jinnah, who was appointed as Amicus Curiae, had rendered valuable assistance to the Court by placing relevant case law, valuable suggestions and written submissions, which assisted the Court in deciding the issues involved in the case. The Court expressed its gratitude to him for his valuable assistance. The Court also placed on record its appreciation and gratitude to Senior Advocate John Sathyan, appearing for the State, and Mr. Niranjan Rajagopalan, learned counsel for the petitioners, for their valuable suggestions and assistance rendered to the Court during the proceedings.

*The judgment is expected to serve as a significant precedent by clarifying the jurisdiction of Judicial Magistrates under the Surrogacy (Regulation) Act, prescribing uniform procedural guidelines across the State, ensuring expeditious disposal of Parentage and Custody petitions, and protecting the rights of intending parents from being defeated on mere technical or procedural grounds.*