CHENNAI: Holding that the Surrogacy (Regulation) Act, 2021, is a “beneficial legislation” to address the growing problem of infertility, the Madras High Court has issued guidelines for judicial magistrates who handle petitions under the Act for granting consequential rights to 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 the dismissal of their petition filed under the Surrogacy (Regulation) Act, praying for orders regarding parentage and custody of child to be born, and relinquishment of future rights by the surrogate mother.
The judge observed, “Surrogacy Act is a beneficial legislation enacted with the primary object of regulating surrogacy in India and more importantly, addressing the growing problem of infertility among young couples.”
He said, “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 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 object of the Act be fulfilled.
The order was passed on 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.
Justice Ahmed held that the magistrate had gone into the matter on “hyper technicalities” without construing Surrogacy (Regulation) Act as a 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 though she is 50 years, nine months, and three days old, she shall be presumed to be at the age of 50 years until she crosses the age of 51 years.
Considering the alternative documents, including medical certificate-ossification test, affidavit and horoscope, she is 49 years, eleven months, and 24 days old. In such a matter, the trial court is not required to go into the question of technicalities and legalities of the certificates, he noted.
The judge directed the authorities concerned to consider the request of the petitioner for extending the validity of the eligibility certificate from May 23, 2026, to May 22, 2027, as the certificate had expired during pendency of the case.
Guidelines given
In the guidelines, Justice Ahmed stated magistrates shall verify the identity of the parties, consent of the surrogate mother and her husband, apart from an undertaking on non-involvement of commercial surrogacy. He stated the magistrate may take scrutiny only if there is alleged fraud.
