Women can opt for surrogacy till 51: Key Madras HC guidelines explained

CHENNAI: The Madras High Court has laid down comprehensive guidelines for magistrates dealing with applications under the Surrogacy (Regulation) Act, saying the objective is to ensure uniform judicial practice and prevent unnecessary hardship to intending couples, surrogate mothers and children born through surrogacy.

The court also set aside a magistrate's order rejecting a couple's plea for 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. However, the magistrate rejected their plea stating that the woman was age-ineligible and the surrogate mother's husband had not been examined.

But the High Court noted that the woman was 50 years, 9 months and 3 days old when the application was filed, which meant she was eligible till she turned 51.

Here are 10 key points from the guidelines laid down by the court:

1. Limited role - A magistrate's role is confined to verifying voluntariness, statutory compliance, the welfare of the child, and legal certainty regarding parentage and custody.

2. No appellate power - Magistrates cannot sit in appeal over the findings of the District Medical Board or the appropriate authority unless there is fraud, lack of jurisdiction or patent illegality.

3. Consent verification - The surrogate mother's consent must be verified. If she is married, her husband's consent must also be obtained before the application is processed.

4. Future rights - The surrogate mother must declare that she will not claim parental custody of the child in the future and that the birth certificate should be issued in favour of the intending parents.

5. Parents undertaking - The intending parents must undertake to accept custody immediately after birth, not abandon the child under any circumstances, fulfil all legal responsibilities and ensure the child's birth is registered in accordance with law.

6. Commercial bar - All parties must furnish an undertaking confirming that the surrogacy arrangement does not involve any form of commercial surrogacy.

7. Personal interaction - The magistrate should personally interact with the intending couple and the surrogate mother to ensure that consent is voluntary, free from coercion or undue influence, and that all parties understand the legal consequences. However, this interaction should not become a full-fledged trial.

8. Exceptional scrutiny - Deeper judicial scrutiny should be undertaken only in exceptional circumstances, such as suspected fraud, fabricated documents, commercial surrogacy, involuntary consent, ex facie illegal documents or when the child's welfare is demonstrably at risk.

9. Eligibility clarified - The High Court held that the intending mother, who was 50 years, nine months and three days old when she applied, remained eligible under the Act until she attained the age of 51.

10. Hyper-technical view discouraged - The court said beneficial legislation such as the Surrogacy (Regulation) Act should not be interpreted in a hyper-technical manner that defeats its purpose, and held that the magistrate had exceeded the scope of jurisdiction in the case.