Justice Shamim Ahmed observed that the guidelines are intended to bring in uniformity in judicial practice and avoid unnecessary hardship to the couples, the surrogate mother, and the child.
[26/06, 12:27] sekarreporter1: https://www.livelaw.in/high-court/madras-high-court/madras-high-court-surrogacy-application-magistrate-guidelines-539003
[26/06, 12:27] sekarreporter1: The Madras High Court has issued extensive guidelines for magistrates who are dealing with applications for custody and parentage under Section 4(iii) (a) (II) of the Surrogacy Act. [2026 LiveLaw (Mad) 281]
Section 4(iii) (a) (II) of the Surrogacy Act deals with an order concerning the parentage and custody of the child to be born through surrogacy, passed by a court of the 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.
As per the Act, no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or the person in charge of the surrogacy clinic and the person qualified to do so are satisfied that the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, including the order of the court.
Justice Shamim Ahmed observed that the guidelines are intended to bring in uniformity in judicial practice and avoid unnecessary hardship to the couples, the surrogate mother, and the child.
“ In order to ensure uniformity in judicial practice and avoid unnecessary hardship to intending couples, surrogate mothers and children born through surrogacy, the following guidelines may be used. The suggested judicial principle based on the observations of the role of the Magistrate is provided and the same may be considered, so as to ensure the division of duties between multiple agencies involved in the process of surrogacy,” the court observed.
The court also emphasised that while processing the applications, the Magistrate’s role is limited to ensuring voluntariness, statutory compliance, and welfare of the child and the Magistrate was not expected to sit in appeal over findings by the Medical Board except in case of fraud.
“ The role of the Magistrate under Section 4(iii)(a)(II) is confined to ensuring voluntariness, statutory compliance, welfare of the child and legal certainty regarding parentage and custody. The Magistrate is not expected to sit in appeal over findings recorded by the District Medical Board or the Appropriate Authority except where fraud, lack of jurisdiction or patent illegality is apparent on the face of the record,” the court said.
The court laid down guidelines for essential requirement of judicial scrutiny, personal interaction, matters of commercial surrogacy, undertakings to be obtained, welfare of the child, time limit, and exceptional cases.
The court was hearing a criminal revision petition challenging an order of the Magistrate, by which the Magistrate had dismissed an application for parentage and custody of the child to be born through surrogacy.
As per the facts, the couple had gotten married in 2005 and had a son who passed away due to cardiac arrest in 2024. Thereafter, since the woman suffered from an absence of uterus, the couple decided to obtain a child through surrogacy. The surrogacy procedure was initiated as per the provisions of the Surrogacy (Regulation) Act, 2021 and after scrutiny of medical records and age-related documents, the appropriate authority issued Eligibility Certificate to the couple.
A relative of the couple came forward and agreed to be the surrogate mother. An application was submitted by her along with the necessary documents and the Appellate Authority issued the Eligibility Certificate to her. Thereafter, the parties filed appropriate plea before the Magistrate court for parentage and custody but the same was rejected on two grounds – age ineligibility of the applicant and the non-examination of the surrogate’s husband.
With respect to the age of the woman, the court noted that on date when the application was submitted, the woman was 50 years 9 months and 3 days old and had not turned 51 years of age. The court thus held that the woman was not ineligible for certification and the appropriate authority had rightly granted her certificate.
The court noted that while the courts must ensure compliance with the statutory safeguards, it should avoid interpreting beneficial legislation in a way that defeats the object of the legislation on hyper-technical approach.
“This Court is of the view that the Courts must therefore ensure compliance with statutory safeguards, while simultaneously avoiding an interpretation that defeats the object of the legislation through hyper-technical approaches. Hence, taking a liberal view, this Court is of the view that the Kerala High Court Division Bench Judgement (cited supra) has taken an apt interpretation of the age limit as mentioned in the Surrogacy (Regulations) Act. Therefore, the age limit of 50 years should be read to include the Petitioner’s age until she turns 51 years,” the court observed.
With respect to non-examining the husband of the surrogate, the court noted that the law did not mandate examination of the surrogate’s husband while considering an application for parentage and custody. The court noted that the law only required the intending couple or the intending mother and the surrogate mother to initiate the proceedings. The court thus held that the Magistrate’s refusal of the petition on the ground that the surrogate’s husband was not examined was fatal to the proceedings and not sustainable.
The court also observed that when the appropriate authority had issued the Eligibility Certificate, the Magistrate should not have reassessed the merits of the certificate unless it was found to be ex-facie illegal, fraudulent or without jurisdiction. The court made it clear that the Magistrate was not to function as an appellate authority over the District Medical Board, Appropriate Authority, Insurance Authority or the Registered ART/Surrogacy Clinics.
In the present case, noting that the Magistrate’s order was one exceeding jurisdiction, the court set aside the same and remanded the matter back to the Magistrate.
Counsel for Petitioner: Mr. Niranjan Rajagopalan, assisted by Mr. T. E. Krishna for G. R. Associates
Counsel for Respondent: Mr. John Sathyan, Senior Advocate, Counsel for the State of Tamil Nadu (Criminal Side), assisted by Mr. M. Dinesh, Government Advocate (Criminal Side)
Amicus Curiae: Mr. Hasan Mohamad Jinnah, Senior Advocate and Amicus Curiae, assisted by Ms. J. R. Archana, Ms. T. Harshana and Mr. S. Prajesh Kumar.
Case Title: Sri Nandhini Devi and Others v State of Tamil Nadu
Citation: 2026 LiveLaw (Mad) 281
Case No: CRL RC No. 950 of 2026
Click Here To Read/Download The Judgment
