CHENNAI: Calling the Surrogacy (Regulation) Act, 2021, a ‘beneficial Act’ to address the growing problem of infertility, the Madras High Court issued guidelines for the judicial magistrates who handle petitions under the Act for granting consequential rights for the parents involved in the process of surrogacy.
Justice Shamim Ahmed, in an order passed on Thursday, issued the guidelines, while allowing a petition filed by a Namakkal couple against dismissal of a petition filed under section 4 (iii) (a) (II) of the Surrogacy (Regulation) Act, praying for orders regarding parentage and custody of the child to be born and relinquishment of future rights by the surrogate mother.
The judge observed, “Surrogacy Act is beneficial legislation enacted with the primary object of regulating surrogacy in India and, more importantly, addressing the growing problem of infertility among young couples.”
“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,” he said.
The order was passed regarding the petition filed by the intending parents, Sri Nandini Devi, her husband Saravanan, of Namakkal and the surrogate mother Kiruthiga Perumal of Karur, after the judicial magistrate in Namakkal, on March 18, 2026, dismissed their petition.
Senior counsel Hasan Mohammed Jinnah assisted the court as amicus curiae. He made a detailed submission on the nuances of the Surrogacy Act and the related judgments of the High Courts and the Supreme Court.
Justice Shamim Ahmed held that the magistrate had gone into the matter on “hyper technicalities” without construing the Surrogacy (Regulation) Act as beneficial legislation.
Disapproving of the reasoning that Sri Nandini Devi is 51 years old and the surrogate mother’s husband was not examined, the judge noted that though she is aged 50 years nine months and 3 days, she shall be presumed to be at the age of 50 years till she crosses the age of 51 years.
Considering the other alternative documents, including medical certificate, ossification test, affidavit and horoscope, she is aged 49 years, eleven months and twenty-four days.
"In such a type of matter, the trial court is not required to go into the question of technicalities and legalities of the certificates," he noted.
In the guidelines, Justice Shamim Ahmed stated the magistrates shall ordinarily verify the identity of the parties, consent of the surrogate mother and her husband and their statement to relinquish future rights, apart from an undertaking on non-involvement of commercial surrogacy.
The judge said the applications from intending parents shall be disposed of “preferably within four weeks” from the date of submission of the application so that the objective of the Act can be fulfilled.
He stated the magistrate may take deeper scrutiny only if there is alleged fraud, fabrication of documents, suspicions of commercial surrogacy, involuntary consent and welfare of the child demonstrably endangered.
Nandini Devi and Saravanan got married on Feb. 21, 2005, and they had a son who died on Nov. 6, 2024, due to cardiac arrest. Subsequently, the couple decided to have a child through a surrogate mother since the former’s uterus was removed due to health ailments.
Their application was processed by the concerned authorities of the health department. Subsequently, they moved the judicial magistrate's court.