The Madras High Court, Madurai Bench has directed the Tamil Nadu government to constitute District Medical Boards in all the districts of the State saying that celebrity couples sneak through surrogacy laws and the authorities are unaware of the legal procedures.

The Court said that the procedure to undergo surrogacy must be fast-tracked otherwise the right given by the statute will be frustrated by the bureaucratic delay and the intending couple may never be able to have their own biological child.

A Single Bench of Justice G.R. Swaminathan observed, “Celebrity couples particularly the super celebrity ones will sneak through the surrogacy laws and its cumbersome procedures. While the constitutionality of the Act is pending consideration before the Hon'ble Supreme Court, it appears that even those who are eligible under the Act are not able to have their treatment procedures done because the concerned authorities are unaware of the procedures to be followed. As per the Act, the Central Government and the State Governments should have respectively formed National Surrogacy Board and State Surrogacy Boards within 90 days of passing the Acts to regulate these procedures. There is no clarity as to whether such a Board is functional in Tamilnadu.”

“Faced with a seemingly unassailable mountain, humans will instead seek out the shortcut. Rather than trying to go over the top, is there perhaps a sneaky way around? And often it is the shortcut that leads to a truly innovative way to solve a problem”, the Bench quoted Marcus du Sautoy.

Advocate P.M. Vishnuvarthanan appeared for the petitioners while Government Advocate S. Jeyapriya appeared for the respondents.

The High Court was dealing with a case wherein a woman who was born in the year 1973 would lose her right to have a child through surrogacy if an eligibility certificate is not issued on or before October 26, 2023. That is why, the petitioners rushed to the Court immediately after lodging an application.

The Court while considering the aforesaid matter noted, “The object of traditional marriage is procreation. Modern science has come to the rescue of couples who are unable to beget children due to biological reasons. It is called assisted reproductive technology. Clinics offering such services are colloquially called IVF centres. It is a fact that the mushrooming of such centres and prevalence of unethical practices by a section of professionals led the parliament to enact the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021.”

The Court asserted that the application of the petitioners shall be considered and disposed of on merits and in accordance with law within a period of four weeks by the concerned authorities.

“… there is no clarity as to whether the District Medical Board for Tirunelveli has been constituted. I, therefore, direct the first respondent to constitute such a Board immediately if not already constituted. The first respondent shall also take immediate steps to set up District Medical Boards in all Districts in Tamil Nadu. The members of the District Medical Board need not necessarily be from Medical Colleges as the Act does not contain such a stipulation”, directed the Court.

The Court further directed that the information about the District Medical Boards should be made available at every Medical College Hospital office and the government is obliged to ensure that the appropriate authorities and the members of the board are well-versed in the norms and procedures and should be sensitized so that applications are disposed of expeditiously.

“Since the Act requires that the intending couple and the surrogate to apply to the Magistrate Court for order concerning the parentage and custody of the child to be born through surrogacy, the State Judicial Academy should conduct programs so that the judicial officers are fully acquainted with the statutory provisions”, said the Court.

Accordingly, the Court disposed of the plea.

Cause Title- Priya Dharshini & Anr. v. The State of Tamil Nadu & Ors.

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Madras High CourtJustice GR SwaminathanSurrogacy

Swasti Chaturvedi