Woman Aged 50 Years Eligible For Surrogacy Until She Turns 51; Magistrate Has No Appellate Power Over Eligibility Certificates: Madras High Court
|The Bench held that non-examination of surrogate mother's husband is not fatal to parentage proceedings; issued guidelines directing disposal of surrogacy petitions within four weeks.
The Madras High Court has held that a woman who has completed 50 years of age but has not yet attained 51 years falls within the statutory age eligibility of "between 23 to 50 years" prescribed under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. Pertinently, the woman was 50 years 9 months and 3 days old.
Further, the Court observed that the Magistrate exercising jurisdiction under Section 4(iii)(a)(II) of the Act cannot function as an appellate authority over eligibility certificates issued by the Appropriate Authority, unless such certificates are shown to be ex-facie illegal, fraudulent or without jurisdiction.
The Court further held that non-examination of the surrogate mother's husband is not fatal to parentage and custody proceedings under the Act, since the statute does not mandate the husband's examination and his consent is already taken into account by the Appropriate Authority while issuing the eligibility certificate to the surrogate mother. Rejecting the hyper-technical approach adopted by the court below, the Court held that when facets of Article 21 of the Constitution of India including the right to reproduce and live with satisfaction and dignity, are involved, courts must give a liberal interpretation to beneficial legislation rather than deprive a couple of their fundamental rights on mere technicalities.
Justice Shamim Ahmed observed, “…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. Hence, the findings of the court below that the 1st Petitioner did not satisfy the condition “between 23 to 50 years” is misconceived and perverse, as this Courts finds that the 1st Petitioner is at the age of 50 years and until she attains the age of 51 years”.
“The 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. The Magistrate shall not function as an appellate authority over the District Medical Board, Appropriate Authority, Insurance Authority or Registered ART/Surrogacy Clinics”, the Bench further observed.
Advocate Niranjan Rajagopalan appeared for the petitioners and Senior Advocate John Sathyan appeared for the respondents, while Senior Advocate Hasan Mohamad Jinnah appeared as amicus curiae.
The petitioners, a couple who lost their only child to cardiac arrest in November 2024, sought to have a child through surrogacy as the first petitioner had undergone total abdominal hysterectomy.
All requisite eligibility certificates were obtained from the Appropriate Authority. The Judicial Magistrate, Namakkal, rejected their application on two grounds, that the first petitioner was 50 years 9 months and 3 days old and therefore exceeded the age limit, and that the husband of the surrogate mother had not been examined.
The High Court set aside the order on both counts, holding the age finding to be misconceived and perverse, applying the ratio of the Kerala High Court's Division Bench in Rajitha P.V. v. Union of India 2025-SCC-Online-Ker-1624 and the principle that a person attains a specified age on the day preceding the anniversary of their birthday.
“This Court is of the view that the Courts must therefore ensure compliance with statutory safeguards, while simultaneously avoiding an interpretation that defeats the object of the legislation through hyper-technical approaches. Hence, taking a liberal view, this Court is of the view that the Kerala High Court Division Bench Judgement (cited supra) has taken an apt interpretation of the age limit as mentioned in the Surrogacy (Regulations) Act. Therefore, the age limit of 50 years should be read to include the Petitioner’s age until she turns 51 years”, the Bench said.
“The High Court can pass an order of parentage and custody of the child, as per the facts and circumstances of the case and can also remand the matter back to the Magistrate for passing the order of parentage and custody of the surrogate child, without any further delay and hardship to the intending couple”, the Bench further observed.
The Court also directed the appropriate authority to extend the eligibility certificate, which had expired during the pendency of proceedings, for a further period of one year, invoking the maxim actus curiae neminem gravabit.
Comprehensive guidelines were issued to all Magistrates across Tamil Nadu, including a direction to dispose of surrogacy petitions within four weeks, confining judicial scrutiny to voluntariness, statutory compliance and welfare of the child, and permitting deeper examination only in cases of fraud, fabricated documents or suspected commercial surrogacy. The order was directed to be circulated to all Principal District Judges.
Neutral Citation: Nandhini Devi and Others v. The State of Tamil Nadu and Others CRL RC No. 950 of 2026
Appearances:
Petitioners: Niranjan Rajagopalan, T.E. Krishna.
Respondents: John Sathyan, Senior Advocate, M. Dinesh. Amicus Curiae, Hasan Mohamad Jinnah, Senior Advocate, J.R. Archana, T. Harshana and S. Prajesh Kumar, Advocates.