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Judicial magistrates should not harp on hypertechnicalities and consequently refuse to pass orders concerning the parentage and custody of a baby to be born through surrogacy just because the woman, intending to be the biological mother, happens to be between 50 and 51 years of age, the Madras High Court has held.
Justice Shamim Ahmed said, the legal requirement that the woman intending to be the biological mother of the baby must be between 23 and 50 years of age could not be construed to mean that a woman aged 50 years, nine months and two days on the date of application would become ineligible to avail of surrogacy.
The judge said, the intending woman would become ineligible only after attaining 51 years of age and therefore, in the present case, the Joint Director of Health Services, in the officer’s capacity as the appropriate authority under the Surrogacy (Regulation) Act of 2021, had rightly issued an elgibility certificate to the intending couple.
The court agreed with senior counsel Hasan Mohamed Jinnah, who had been appointed as an amicus curiae, that a judicial magistrate in Namakkal had exceeded the judicial officer’s jurisdiction by assessing the validity of the eligibility certificate and giving a finding that the certificate was invalid just because of the age of the applicant.
“Unless the eligibility certificates issued by the appropriate authority under the 2021 Surrogacy (Regulation) Act are set aside by a competent forum or shown to be ex-facie illegal, fraudulent, or without jurisdiction, the Judicial Magistrate ought not to reassess the merits of such certificates,” Justice Ahmed wrote.
After recording the arguments advanced by Government Counsel (criminal side) R. John Sathyan and the intending couple’s counsel Niranjan Rajagopalan, the judge ruled that in the present case, the Judicial Magistrate had also erred in insisting upon the examination of the surrogate mother’s husband.
He pointed out the Surrogacy Act states that no surrogacy or surrogacy procedures should be conducted, undertaken, performed or initiated, unless the intending couple/woman submits a host of documents, which include a judicial order concerning the parentage and custody of a baby to be born through surrogacy.
The judicial order, intended to serve as the birth affidavit after the surrogate baby is born, had to be obtained under Section 4(iii)(a)(II) of the Act, and the provision clearly states that the application for such an order could be made by the intending couple or the intending single woman and the surrogate mother.
“The Section does not require the husband of the surrogate mother to be a party to the proceeding or depose evidence with regard to the issue. The wordings of the Section are very clear as to who has to initiate the proceedings for an order concerning the parentage and custody of the child,” the judge highlighted.
He also said: “The eligibility certificate issued by the appropriate authority takes into account the consent of the surrogate mother’s husband and the same is not a factor for re-examination by the Magistrate when he/she is passing an order of parentage and the Act does not mandate examination of surrogate mother’s husband.”
Further, taking note that the eligibility certificate valid for a period of one year had expired in the present case on May 23, 2026, because of the long legal proceedings that the intending couple had to face before the magistrate, the judge ordered that its validity should be extended for a further period of one year.
He also set aside the magistrate’s March 18, 2026, order refusing to issue the birth affidavit and remanded the matter for fresh consideration in the light of the observations made by him in the present criminal revision petition. The Registrar General of the High Court was also requested to circulate a copy of the order passed in the present revision to all the Principal District Judges in the State for information and compliance.
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