The Madras High Court ruled that women remain eligible for surrogacy until they turn 51, interpreting the upper age limit liberally. It also directed magistrates to avoid hyper-technical objections while deciding surrogacy-related birth affidavit and parentage applications.
In a significant judgment interpreting the Surrogacy (Regulation) Act, 2021, the Madras High Court held that a woman remains 50 years old until she attains the age of 51 and is therefore eligible to avail surrogacy under the statutory age limit.
The Court also ruled that a Magistrate cannot sit in appeal over eligibility certificates issued by the competent authority or reject a surrogacy application on hyper-technical grounds.
Justice Shamim Ahmed passed the ruling while allowing a criminal revision petition filed by a couple whose application for a parentage and custody order had been rejected by the Judicial Magistrate, Namakkal.
The case involved a couple who got married in 2005 and had a son in 2008. Tragically, their only child died due to cardiac arrest in November 2024. The first petitioner had also undergone a hysterectomy, making her medically incapable of carrying another pregnancy. Consequently, the couple decided to opt for altruistic surrogacy under the Surrogacy (Regulation) Act, 2021.
The couple approached a fertility hospital, completed the statutory medical procedures and obtained an eligibility certificate from the Appropriate Authority on May 23, 2025. A close relative agreed to act as the surrogate mother and she too received the required eligibility certificate after submitting all necessary documents along with her husband’s consent.
Thereafter, the intending couple and the surrogate mother approached the Judicial Magistrate under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act seeking an order concerning the parentage and custody of the child to be born through surrogacy.
However, the Magistrate dismissed their plea on two grounds. First, the court held that the intending mother had crossed the upper age limit because she was 50 years, 9 months and 3 days old. Secondly, the Magistrate held that since the surrogate mother’s husband had not been examined before the court, the petition could not be allowed.
Challenging the order before the High Court, the petitioners argued that a woman continues to remain 50 years old until she turns 51 and therefore remained within the statutory age limit. They also contended that the eligibility certificate issued by the Appropriate Authority could not be reassessed by the Magistrate. Further, they argued that the Surrogacy Act nowhere mandates the examination of the surrogate mother’s husband.
Accepting these submissions, the High Court observed that the Magistrate had travelled beyond the limited jurisdiction conferred under the Act.
The Court held,
“The Magistrate shall not function as an appellate authority over the District Medical Board, Appropriate Authority, Insurance Authority or Registered ART/Surrogacy Clinics.”
The Court explained that the role of the Magistrate under Section 4(iii)(a)(II) is confined to passing an order regarding the parentage and custody of the child. It does not include re-examining or reassessing eligibility certificates issued by statutory authorities unless those certificates are shown to be fraudulent, illegal or issued without jurisdiction.
The Court further observed,
“Certificates issued by the District Medical Board and Appropriate Authority carry a presumption of validity. Unless set aside by a competent forum or shown to be ex-facie illegal, fraudulent or without jurisdiction, the Magistrate ought not to reassess the merits of such certificates.”
Addressing the second ground relied upon by the Magistrate, the High Court categorically ruled that the Surrogacy Act does not require the surrogate mother’s husband to be examined before the court.
The judgment states,
“The Act does not mandate examination of surrogate mother’s husband.”
The Court added that although the surrogate mother’s husband’s consent is considered while issuing the eligibility certificate, the statute does not require him to become a party to the proceedings or depose before the Magistrate.
The principal issue before the High Court concerned the interpretation of the expression “between 23 to 50 years” appearing in Section 4(iii)(c)(I) of the Surrogacy Act.
After examining the statutory framework, judicial precedents and the object of the legislation, the Court held that the age limit includes women who have completed 50 years but have not yet attained 51 years.
The Court observed,
“The age limit of 50 years should be read to include the Petitioner’s age until she turns 51 years.”
It further held,
“This Court is of the view that if a woman is stated to be aged 50 years, until she attains 51 years, it can be stated that she remains at the age of 50 years.”
While arriving at this conclusion, the Court relied upon the Kerala High Court’s decision in Rajitha P.V. v. Union of India and several Supreme Court judgments dealing with computation of age and statutory interpretation.
The High Court emphasised that the Surrogacy (Regulation) Act is a beneficial legislation enacted to regulate ethical surrogacy practices and should not be interpreted in a manner that defeats its object.
The Court observed,
“Proceedings under Section 4(iii)(a)(II) are beneficial, facilitative and child-centric proceedings and not adversarial litigation.”
It further held,
“The welfare of the child is the paramount consideration when determining custody.”
The judgment also underlined that the Magistrate’s jurisdiction is protective in nature and intended to safeguard the welfare of the child, the rights of the intending parents and the autonomy of the surrogate mother.
The High Court also expressed concern over the approach being adopted by subordinate courts in surrogacy matters.
Referring to the constitutional protection available to intending parents, the Court held that reproductive choice forms part of the right to life guaranteed under Article 21 of the Constitution.
The Court observed,
“The Right to life under Article 21 provides the right and personal liberty to reproduce to live with satisfaction and dignity.”
The Court added,
“This court has, in most of the cases, seen that the Magistrates are hyper-technical and are not considering this Act, as a Beneficial Legislation.”
Since the petitioners had already lost their only child and had obtained a valid eligibility certificate which expired during the pendency of the litigation, the Court held that they should not suffer because of an erroneous judicial order.
Invoking the legal maxim Actus curiae neminem gravabit, the Court noted that no person should suffer due to the act of the court.
Allowing the revision petition, the High Court set aside the Magistrate’s order and clarified that technical objections cannot be permitted to frustrate the purpose of the Surrogacy (Regulation) Act, 2021.
The judgment reinforces that eligibility certificates issued by competent statutory authorities deserve judicial respect and that the legislation must be interpreted liberally to protect intending parents, surrogate mothers and the welfare of children born through surrogacy.
Case Title: Nandhini Devi Vs State of Tamil Nadu
