Surrogacy cases: HC issues guidelines for magistrates

CHENNAI: The Madras High Court issued comprehensive guidelines for magistrates under the Surrogacy (Regulation) Act to ensure uniformity in judicial practice and avoid unnecessary hardship to intending couples, surrogate mothers, and children born through surrogacy.

While setting aside a magistrate's order rejecting a couple's plea for parentage and custody of a child to be born through surrogacy, Justice Shamim Ahmed clarified that a magistrate's role is limited to ensuring voluntariness, statutory compliance, the child's welfare, and legal certainty regarding parentage and custody.

A magistrate cannot sit in appeal over the findings of the District Medical Board or the appropriate authority except in cases of fraud, lack of jurisdiction or patent illegality, the judge added. The court also laid down guidelines on judicial scrutiny, personal interaction, commercial surrogacy, undertakings, child welfare, time limits and exceptional cases.

The court was hearing a criminal revision petition challenging a magistrate's order dismissing an application seeking parentage and custody of a child to be born through surrogacy. The couple, who got married in 2005, lost their son to cardiac arrest in 2024. As the woman did not have a uterus, they opted for surrogacy and a relative agreed to act as the surrogate mother. Both of them obtained eligibility certificates mandated under the Surrogacy (Regulation) Act, 2021.

However, the magistrate rejected their plea for parentage and custody on the grounds that the woman was age-ineligible and the surrogate mother's husband had not been examined.

Noted that the woman was 50 years, 9 months and 3 days old when the application was filed, the High Court said she was eligible till she turned 51, and added that the appropriate authority had rightly granted the eligibility certificate.

While courts must ensure compliance with statutory safeguards, they should avoid interpreting beneficial legislation in a hyper-technical manner that defeats its object. Holding that the magistrate had exceeded the scope of jurisdiction, the judge set aside the impugned order and remanded the matter to the magistrate for fresh consideration.