Judicial Officers Are Expected To Approach Surrogacy Petitions With Sensitivity And Compassion: Madras High Court

“The judicial officers are therefore expected to approach such petitions with sensitivity, responsibility and compassion ensuring that the statutory safeguards under the Act are complied with, without frustrating the beneficial objective of the legislation,” the court said.

Justice AD Jagadish Chandira observed that the Act is a beneficial legislation and its primary objective is to regulate surrogacy in India. The court added that an application filed under the Act should not be dealt with in a routine manner and the courts must keep in mind that these matters are touching upon the deepest aspirations of human life, to have a child.

“The Act seeks to provide a legally structured, ethical and medically safe pathway for childless couples to experience parenthood wherein the role of the judiciary assumes great importance. A petition filed under this Act must not be dealt with as though it is a routine application and Courts must keep in mind that these are matters touching upon one of the deepest aspirations of human life, the desire of childless couples to have a child,” the court observed.

The court was dealing with a petition to set aside the docket order of the Judicial Magistrate, Katpadi, returning a petition filed by them seeking an order of parentage and custody. The petitioners, who were intending parents, filed a petition under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act 2021.

As per Section 4(iii)(a)(II) of the Act, no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated unless the Director or 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 appropriate authority after satisfying itself that an order of parentage and custody of the child to be born through surrogacy has been passed by a court of Magistrate of first class or above on an application made by the intending couple or the intending woman and surrogate mother, which shall be the birth affidavit after the surrogate child is born.

The petitioners and the respondents had entered into an agreement for surrogacy and the consent and medical fitness certificate of the respondent, intending surrogate mother were annexed as proof. For performing the procedure, the parties had filed the petition seeking an order for grant of parentage and custody of the child.

The Judicial magistrate, Katpadi, however, returned the petitioners on the ground that the court had no jurisdiction to entertain the petition. Challenging this order, the parties had approached the High Court. The parties submitted that the petition was not one of civil nature but merely a statutory proceeding requiring the judicial approval in aid of a lawful medical procedure.

The court noted that as per the Act, one of the requirement was that an order be passed by the Judicial Magistrate of first class or above. The court noted that in the present case, the Magistrate had returned the petition in several occasions, without understanding the sensitivity involved in the case.

The court also noted that the Magistrate's order citing the decision of the Supreme Court in Arun Muthuvel v. Union of India, regarding exemption in age criteria would not be applicable in the present case.

The court thus set aside the order and remitted the matter back to the Judicial Magistrate, Katpadi with a direction to number the petition and to conduct an enquiry and pass appropriate orders in accordance with law within two weeks.

Counsel for Petitioner: Mr. N. Senthilkumar

Case Title: S Prasanna and another v. Jothika

Citation: 2025 LiveLaw (Mad) 423

Case No: Crl.O.P. No.29464 of 2025