Madras HC Sets Aside Magistrate's Order Rejecting Surrogacy Parentage Petition on Age and Husband-Examination Grounds

Justice Shamim Ahmed held that a Magistrate cannot re-examine eligibility certificates issued by the appropriate authority and that a woman aged 50 years remains eligible until she turns 51, issuing detailed guidelines for Magistrates handling surrogacy parentage petitions.

The High Court of Judicature at Madras has set aside an order by the Judicial Magistrate No. I, Namakkal, which had dismissed a petition seeking a parentage and custody order for a child to be born through surrogacy. Justice Shamim Ahmed, sitting singly, allowed CRL RC No. 950 of 2026 on 25 June 2026, holding that the Magistrate had exceeded its jurisdiction by re-examining the validity of eligibility certificates already issued by the appropriate authority and by insisting on the examination of the surrogate mother's husband. The court also resolved the question of whether a woman who has completed 50 years but not yet turned 51 falls within the statutory age band of “between 23 to 50 years” under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The matter was remanded to the Magistrate with directions and guidelines, and the appropriate authority was directed to extend the expired eligibility certificate.

The Couple, the Surrogate, and the Petition Before the Magistrate

Petitioners 1 and 2 — Sri Nandhini Devi and Saravanan, residents of Namakkal — married on 21 February 2005 and had a son born on 21 September 2008. Their son died on 6 November 2024 due to cardiac arrest, at the age of 16. The first petitioner underwent a total abdominal hysterectomy on 29 October 2024, rendering her medically incapable of carrying a pregnancy. The couple enrolled at Dharan Women's Care Fertility Centre, Salem, on 31 January 2025 and applied for surrogacy before the Joint Director of Health Services, Namakkal, on 24 March 2025.

After scrutiny of medical records and age-related documents, the appropriate authority issued an eligibility certificate to Petitioners 1 and 2 on 23 May 2025, valid until 22 May 2026. The third petitioner, Kiruthiga Perumal of Karur, a relative of the couple, agreed to act as surrogate mother. She submitted her application with the consent of her husband to the appropriate authority at Karur, which issued her eligibility certificate on 22 December 2025.

The petitioners then filed Crl.MP.No.258 of 2026 before the Judicial Magistrate No. I, Namakkal, under Section 4(iii)(a)(II) of the Act, seeking an order concerning the parentage and custody of the child to be born through surrogacy and a direction to the surrogate mother to relinquish all rights over the child.

By the impugned order dated 18 March 2026, the Magistrate dismissed the petition on two grounds: first, that the first petitioner was 50 years, 9 months and 3 days old at the time of her application for the eligibility certificate, making her ineligible under the age ceiling of 50 years in Section 4(iii)(c)(I); and second, that the husband of the surrogate mother had not been examined before the court.

Four Questions Framed by the High Court

Justice Shamim Ahmed framed four questions for determination:

First, whether the Magistrate can re-examine the correctness of an eligibility certificate already issued by the appropriate authority, and what is the extent of the Magistrate's power under Section 4(iii)(a)(II). Second, whether non-examination of the surrogate mother's husband is fatal to the proceedings. Third, whether the expression “between 23 to 50 years” in Section 4(iii)(c)(I) includes a woman who has completed 50 years but not yet attained 51. Fourth, whether the High Court can itself pass a parentage order or should remand the matter to the Magistrate.

The court heard Mr. Niranjan Rajagopalan for the petitioners, Mr. John Sathyan, Senior Advocate, for the State of Tamil Nadu, and Mr. Hasan Mohamad Jinnah, Senior Advocate, as Amicus Curiae appointed by the court.

Magistrate's Role Is Confined, Not Appellate

On the first question, the court held that the Surrogacy (Regulation) Act, 2021 assigns specific roles to distinct specialised agencies. The Magistrate's role under Section 4(iii)(a)(II) is limited to passing an order concerning the parentage and custody of the child, thereby protecting the child's interests. The Magistrate is not empowered to sit as an appellate authority over the District Medical Board or the appropriate authority.

Certificates issued by the District Medical Board and the appropriate authority carry a presumption of validity. Unless such certificates are set aside by a competent forum or shown to be ex facie illegal, fraudulent, or without jurisdiction, the Magistrate ought not to reassess their merits. The Act provides a separate appeal mechanism under Section 14 to the respective State or Central Government for challenges to certificates. The court found that the Magistrate had wrongfully interpreted the Act's provisions to negate the eligibility certificate granted by the appropriate authority, thereby restricting the applicability of a beneficial legislation on the basis of technicalities.

No Statutory Requirement to Examine Surrogate's Husband

On the second question, the court held that the Magistrate's finding that non-examination of the surrogate mother's husband was fatal to the proceedings was perverse and not sustainable. Section 4(iii)(a)(II) requires only the intending couple or the intending woman and the surrogate mother to initiate proceedings before the Magistrate. The section does not require the husband of the surrogate mother to be a party to the proceedings or to depose evidence.

The eligibility certificate issued by the appropriate authority already takes into account the consent of the surrogate mother's husband. That consent is not a factor for re-examination by the Magistrate when passing a parentage order. The husband of the third petitioner was not a party to the proceedings, and the Act does not mandate his examination. The dismissal of the application on this ground was held to be legally unfounded.

Age of 50 Years Extends Until the 51st Birthday

The third question — the meaning of “between 23 to 50 years” — received the most detailed treatment. The court noted that the first petitioner's date of birth, as per her Aadhaar card, PAN card, and 10th marksheet, is 21 June 1974, making her 50 years, 9 months and 3 days old at the time of her application. Alternative documents, including a medical certificate from an ossification test, an affidavit, and her horoscope, placed her age at 49 years, 11 months and 24 days.

The court referred to the Kerala High Court Division Bench decision in Rajitha P.V. v. Union of India (2025-SCC-Online-Ker-1624), which held that under Section 4(iii)(c)(I) read with Section 9 of the General Clauses Act, 1897, the eligibility of an intending woman extends throughout the 50th year, ceasing on the day she turns 51. The Kerala court reasoned that the word “to” before the last number in a statutory range includes that number, and that if the legislature had intended to exclude 50, it would have used phrases such as “up to but not including 50” or “below the age of fifty”.

The Madras High Court also considered the Supreme Court's decisions in Prabhu Dayal Sesma v. State of Rajasthan (1986-4-SCC-59), Achhaibar Maurya v. State of UP (2008-2-SCC-639), and Eerati Laxman v. State of AP (2009-3-SCC-337), which establish that in calculating a person's age, the day of birth is counted as a whole day and a specified age is attained on the day preceding the anniversary of the birthday. The court noted, however, that these decisions do not directly answer the distinct question of what the expression “between 23 to 50 years” means.

The court observed that Parliament used the specific phrase “between 23 to 50 years” in the Surrogacy Act, while other statutes use formulations such as “below”, “not exceeding”, or “has not attained the age of”. Taking a liberal view consistent with the Act's character as beneficial legislation, the court agreed with the Kerala High Court's interpretation: the age limit of 50 years includes the petitioner's age until she turns 51. The finding of the Magistrate that the first petitioner did not satisfy the condition was held to be misconceived and perverse.

The court also noted the Supreme Court's ruling in Vijayakumari S. & Ors. v. Union of India (2026-2-SCC-96) that the age limitation in the Surrogacy Act does not operate retrospectively, as retrospective application would render the Act non-beneficial and defeat its intent.

Guidelines Issued for Magistrates Handling Surrogacy Parentage Petitions

Justice Shamim Ahmed issued detailed guidelines for Magistrates dealing with applications under Section 4(iii)(a)(II), drawing on the coordinate bench decisions in X, Y v. State (WP Nos. 26975 and 27020 of 2025), S. Prasanna v. M. Jothika (2025-SCC-Online-Mad-9957), and Palani Pandi v. Nil (Crl.RC(MD) No. 981 of 2025).

The guidelines state that the Magistrate's role 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 Magistrate is not expected to sit in appeal over findings of the District Medical Board or the appropriate authority except where fraud, lack of jurisdiction, or patent illegality is apparent on the face of the record.

The Magistrate shall verify the identity of parties, the surrogate mother's consent and her statement that she will not claim parental custody, the intending parents' undertaking not to abandon the child, and confirmation that no commercial surrogacy is involved. Personal interaction with the intending couple and surrogate mother shall be conducted to satisfy the Magistrate as to voluntariness, absence of coercion, and understanding of legal consequences, but such interaction need not assume the character of a full-fledged trial. Applications should preferably be disposed of within four weeks from the date of filing. Deeper scrutiny is warranted only where fraud is alleged, documents appear fabricated, commercial surrogacy is suspected, consent appears involuntary, or the welfare of the child is demonstrably endangered.

The court also invoked Article 21, observing that the right to life includes the right and personal liberty to reproduce and to live with satisfaction and dignity. When such facets of Article 21 are involved, courts must give a liberal interpretation to beneficial legislation rather than deprive a couple of their fundamental right on mere technicalities. The court applied the maxim actus curiae neminem gravabit — the act of the court prejudices nobody — noting that the petitioners' eligibility certificate had expired on 22 May 2026 due to the delay caused by the Magistrate's erroneous order and the pendency of the revision before the High Court.

Order

The Criminal Revision Case was allowed. The impugned order dated 18 March 2026 passed in Crl.MP.No.258 of 2026 by the Judicial Magistrate No. I, Namakkal was set aside and reversed.

The matter was remanded to the Judicial Magistrate No. I, Namakkal, for fresh consideration in accordance with law and in line with the observations and guidelines in the High Court's order.

The petitioners were directed to apply within two weeks before the appropriate authority for extension of the eligibility certificate for a further period of one year, from 23 May 2026 to 22 May 2027. On receipt of such application, the appropriate authority was directed to issue the extended eligibility certificate within two weeks. On receipt of the extended certificate, the petitioners shall file it before the Trial Court, which shall then pass orders within four weeks in accordance with law and the guidelines in the High Court's order.

The Registrar General of the High Court was requested to circulate a copy of the order to all Principal District Judges for information and compliance.