The Madras High Court has held that an intending mother remains eligible for surrogacy until she attains the age of 51, ruling that the expression “between 23 to 50 years” under the Surrogacy (Regulation) Act, 2021 includes women throughout their 50th year. The Court further clarified that a Magistrate deciding an application for parentage and custody under the Act cannot reassess the validity of an eligibility certificate issued by the competent authority, nor can such proceedings be rejected merely because the surrogate mother’s husband was not examined.
Justice Shamim Ahmed allowed a criminal revision petition filed by an intending couple whose application for a parentage and custody order had been rejected by the Judicial Magistrate, Namakkal. The Magistrate had held that the intending mother, who was 50 years, 9 months and 3 days old, had crossed the statutory upper age limit of 50 years and had also found fault with the non-examination of the surrogate mother’s husband.
The petitioners had lost their 16-year-old son due to cardiac arrest in November 2024. As the intending mother had undergone a hysterectomy and was medically incapable of carrying a pregnancy, the couple opted for altruistic surrogacy. They obtained eligibility certificates from the appropriate authorities for themselves as well as the surrogate mother before approaching the Magistrate under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act seeking an order regarding parentage and custody of the child to be born through surrogacy.
The Magistrate, however, dismissed their application on the grounds that the intending mother had crossed the upper age limit prescribed under the Act and that the surrogate mother’s husband had not been examined. Aggrieved by the order, the petitioners filed the present criminal revision petition before the High Court, which considered the following four questions:
1. Whether the Magistrate can re-examine the correctness of an eligibility certificate already issued by the appropriate authority and what is the extent of the Magistrate’s power while passing an order concerning parentage and custody?
The High Court answered this question in the negative, holding that the Magistrate cannot sit in appeal over an eligibility certificate issued by the Appropriate Authority. It held that the Surrogacy (Regulation) Act assigns distinct functions to different authorities, and the Magistrate’s role is confined to passing an order concerning parentage and custody of the child under Section 4(iii)(a)(II). Unless the eligibility certificate is shown to be fraudulent, without jurisdiction, or patently illegal, the Magistrate cannot reassess its correctness. The Court held that the trial court exceeded its jurisdiction by virtually acting as an appellate authority over the eligibility certificate.
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“Certificates issued by the District Medical Board and Appropriate Authority carry a presumption of validity. Unless the certificates… are shown to be ex facie illegal, fraudulent or without jurisdiction, the Magistrate ought not to reassess the merits of such certificates. This Court is of the view that when eligibility certificate was issued by the appropriate authority, the court below had exceeded its jurisdiction and erroneously reassessed the eligibility certificate as to its correctness.”
2. Whether the non-examination of the surrogate mother’s husband is fatal to the proceedings?
The Court held that it is not. It observed that while the Act requires the consent of the surrogate mother’s husband wherever applicable, it does not mandate his examination before the Magistrate. Since the Appropriate Authority had already verified the husband’s consent before issuing the eligibility certificate, insisting upon his examination amounted to adding a requirement not contemplated by the statute. Accordingly, the Magistrate erred in dismissing the petition on this ground. It observed:
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“the court below had observed that the non-examination of the husband of the surrogate mother is fatal to the proceedings, which in the opinion of this Court is perverse and not sustainable, since as per Section 4(iii)(a)(II) of the Act, “an order concerning the parentage and custody of the child to be born through surrogacy has been 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 and the Eligibility certificate issued by the Appropriate Authority takes into account the consent of the surrogate mother’s husband and the same is not a factor for re-examination by the Magistrate when he/she is passing an order of parentage and the Act does not mandate examination of surrogate mother’s husband.&rdquo
3. Whether the expression “between 23 to 50 years” under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act includes a woman who has completed 50 years but has not yet attained 51 years?
The High Court answered this question in the affirmative, holding that a woman continues to remain 50 years of age until she completes 51 years, and therefore falls within the statutory age band prescribed under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The Court rejected the trial court’s finding that the petitioner had become ineligible merely because she was 50 years, 9 months and 3 days old at the time of applying for the eligibility certificate.
Justice Shamim Ahmed observed that the phrase “between 23 to 50 years” cannot be interpreted in a narrow or hyper-technical manner. Instead, it must be construed in light of the beneficial object of the Surrogacy Act, which seeks to facilitate ethical surrogacy for eligible couples while preventing exploitation. The Court noted that if the legislature intended to exclude women immediately upon completing 50 years, it would have expressly stated so.
In reaching this conclusion, the Court referred to the Supreme Court’s decisions in Prabhu Dayal Sesma v. State of Rajasthan, 1986-4-SCC-59,Achhaibar Maurya v. State of Uttar Pradesh,2008-2-SCC-639, and Eerati Laxman v. State of Andhra Pradesh, 2009-3-SCC-337, and Kerala High Court ruling in Rajitha P.V. v. Union of India, 2025-SCC-Online-Ker-1624 on the principles governing computation of age. It also referred the Supreme Court’s decision in Vijayakumari S. & Ors. v. Union of India, (2024-SCC Online-SC333, which held that the Surrogacy (Regulation) Act is a beneficial legislation that should not be interpreted in a manner defeating its object. Thus, the Court held that the expression “between 23 to 50 years” includes a woman throughout her 50th year, i.e., until she attains the age of 51. Emphasising the beneficial nature of the legislation, the Court cautioned against defeating its object through rigid interpretation. It observed:
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“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.
The age limit of 50 years should be read to include the Petitioner’s age until she turns 51 years…If a woman is stated to be aged 50 years, until she attains 51 years, it can be stated that she remains at the age of 50 years.”
4. Whether the High Court should itself pass an order concerning parentage to avoid further delay or remand the matter to the Magistrate for fresh consideration?
The Court held that although it possesses the power to mould relief, it was appropriate to remand the matter to the Judicial Magistrate because the petitioners’ eligibility certificate had expired during the pendency of the proceedings. It directed the petitioners to apply for an extension of the certificate, ordered the Appropriate Authority to issue a fresh certificate for one year, and directed the Magistrate to decide the application afresh in accordance with the observations and guidelines laid down in the judgment. The Court also framed comprehensive guidelines delineating the limited scope of a Magistrate’s role while dealing with applications under Section 4(iii)(a)(II) of the Act.
Uniform Guidelines for Magistrates Hearing Surrogacy Cases
Recognising the need for uniformity in the implementation of the Surrogacy (Regulation) Act, 2021, the High Court framed comprehensive guidelines for Magistrates dealing with applications under Section 4(iii)(a)(II). The Court clarified that a Magistrate’s role is limited to ensuring voluntariness, statutory compliance, the welfare of the child, and legal certainty regarding parentage and custody, and that the Magistrate cannot sit in appeal over findings of the District Medical Board or the Appropriate Authority, except in cases involving fraud, lack of jurisdiction, or patent illegality.
Among the guidelines issued, the Court directed that Magistrates should:
1) Magistrates should verify that the application contains all essential documents, including the identity of the parties, the surrogate mother’s consent (and her husband’s consent where applicable), undertakings by the surrogate mother and intending parents, and a declaration that the arrangement does not involve commercial surrogacy.
2) Magistrates should personally interact with the intending couple and the surrogate mother to satisfy themselves regarding voluntariness, absence of coercion or undue influence, and their understanding of the legal consequences, without converting the proceedings into a full-fledged trial.
3) Magistrates must ensure that the surrogacy arrangement is purely altruistic, that no commercial consideration is involved, and that all parties understand the statutory prohibition against commercial surrogacy.
4) Magistrates should obtain appropriate undertakings from the intending parents to immediately accept custody, not abandon the child, bear all legal responsibilities, and ensure registration of the child’s birth, while also obtaining the surrogate mother’s undertaking relinquishing all parental rights.
5) He must ensure that the welfare of the child must remain the paramount consideration by ensuring legal parentage is clearly established, custody vests in the intending parents from birth, no legal vacuum exists regarding guardianship, and the child’s statutory rights under Section 8 are protected.
6) Applications under Section 4(iii)(a)(II) should, as far as possible, be disposed of within four weeks so that the object of the Surrogacy (Regulation) Act is fulfilled.
7) Magistrates should undertake deeper scrutiny only in exceptional cases involving allegations of fraud, fabricated documents, suspected commercial surrogacy, involuntary consent, ex facie illegal documents, or where the child’s welfare appears to be endangered; upon being satisfied, they may declare the intending couple as the lawful parents, recognise the child as their biological child under Section 8, vest custody in them from birth, and issue the statutory parentage declaration.
Allowing the revision petition, the Court set aside the Magistrate’s order, remanded the matter for fresh consideration, directed the petitioners to seek extension of their eligibility certificate, and instructed the appropriate authority to issue a fresh certificate for one year. The Registrar General was also directed to circulate the judgment to all Principal District Judges for guidance and compliance.
