Surrogacy cases: Madras 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.

ABUNDANT PRECAUTION TO PROTECT BUNDLE OF JOY

While processing applications, the magistrate’s role is confined to ensuring voluntariness, statutory compliance, the welfare of the child, and legal certainty regarding parentage and custody. The magistrate is not expected to sit in appeal over the findings of the District Medical Board or the appropriate authority, except in cases where fraud, lack of jurisdiction, or patent illegality is apparent on the face of the record.

Magistrate should verify the surrogate mother’s consent. If the mother is married, the consent of her husband must also be obtained. She must also state that she will not claim parental custody of the child in future and that the birth certificate shall be issued in favour of the intending parents.

The intending parents shall also undertake that they will accept custody of the child immediately after birth, will not abandon the child under any circumstances, will bear all legal obligations towards the child, and will ensure that the child’s birth is duly registered in accordance with law.

The surrogate mother shall undertake that she has voluntarily agreed to act as a surrogate, has no objection to parentage being vested in the intending parents, and will not claim custody of the child at any stage in the future.

All parties must furnish an undertaking that the arrangement does not involve any form of commercial surrogacy. The magistrate shall personally interact with the intending couple and the surrogate mother to satisfy herself/himself that the consent is voluntary, free from coercion or undue influence, and that they fully understand the legal consequences of the arrangement, and record the same. However, such interaction need not assume the character of a full-fledged trial.

The magistrate may undertake deeper scrutiny only in exceptional circumstances, such as where fraud is alleged, documents appear fabricated, commercial surrogacy is suspected, consent appears involuntary, the documents are ex facie illegal, or the welfare of the child is demonstrably endangered.