Madras High Court Issues Guidelines For Magistrates Dealing With Custody And Parentage Applications In Surrogacy Cases

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...

Madras High Court Issues Guidelines For Magistrates Dealing With Custody And Parentage Applications In Surrogacy Cases

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Madras High Court Issues Guidelines For Magistrates Dealing With Custody And Parentage Applications In Surrogacy Cases

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