Madras High Court: In a petition filed under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021 (‘the Act’) seeking judicial approval for parentage and custody of the child to be born through surrogacy, along with approval of the intended procedure, wherein the arrangement was altruistic in nature and supported by the consent and medical fitness of the surrogate mother, a Single Judge Bench of A.D. Jagadish Chandira, J., held that the Judicial Magistrate had erroneously and repeatedly returned the petition without appreciating the sensitivity involved, thereby frustrating the parties and acting contrary to the intent of the beneficial legislation.
Thus, the Court held that the intending couple’s request for parentage and custody of the child born through the surrogate mother, along with approval of surrogacy, was permissible in law, and accordingly allowed the petition.
Background:
The petitioners were a legally wedded couple who were unable to conceive a child due to the second petitioner’s primary infertility. On medical advice from a fertility specialist, they were advised to undergo a surrogacy procedure. The respondent, who was the younger sister of the second petitioner, was willing to act as the surrogate mother.
An agreement for surrogacy was executed between the petitioners and the respondent, supported by her consent and medical fitness certificate. The procedure was planned to be carried out at G.G. Hospital, Nungambakkam, Chennai. The petitioners submitted all requisite documents under the Act, and emphasised that the arrangement was altruistic in nature, without any commercial element, in compliance with Section 3(ii) of the Act. Accordingly, they filed a petition under Section 4(iii)(a)(II) of the Act before the Judicial Magistrate, Katpadi, seeking an order granting parentage and custody of the child to be born through surrogacy, along with approval of the intended procedure.
However, after several returns and representations, the Judicial Magistrate, on 26-09-2025, finally returned the petition stating lack of jurisdiction. Aggrieved by this, the petitioners filed the petition, contending that the rejection was contrary to Section 4(iii)(a)(II) of the Act. They argued that the petition was not of civil nature but a statutory proceeding requiring judicial approval for a lawful medical procedure.
Analysis and Decision:
The Court emphasised that one of the requirements under the Surrogacy (Regulation) Act, 2021 (‘the Act’), is that the Court of Magistrate of the first class or above must pass an order concerning the parentage and custody of the child to be born through surrogacy, on an application made by the intending couple or the intending woman and the surrogate mother, which shall serve as the birth affidavit after the surrogate child is born. The Court noted that the Act is very clear in mandating that such an order has to be necessarily passed by the jurisdictional Judicial Magistrate. However, in the present case, the Judicial Magistrate had erroneously returned the petition citing lack of jurisdiction.
The Court highlighted that the Act, is a beneficial legislation enacted with the primary object of regulating surrogacy in India and, more importantly, addressing the growing problem of infertility among young couples. The Court observed that the Act seeks to provide a legally structured, ethical, and medically safe pathway for childless couples to experience parenthood, wherein the role of the judiciary assumes great importance. The Court further emphasised that petitions filed under the Act must not be treated as routine applications, as they concern one of the deepest aspirations of human life, the desire of childless couples to have a child.
The Court noted that judicial officers are expected to approach such petitions with sensitivity, responsibility, and compassion, ensuring that statutory safeguards under the Act are complied with, without frustrating the beneficial objective of the legislation. The Court observed that the Judicial Magistrate, Katpadi, without properly considering the provisions of the Act, had returned the petition erroneously. Further, the Court highlighted that the Magistrate repeatedly returned the petition without appreciating the sensitivity involved, thereby frustrating the parties and acting contrary to the intent of the beneficial legislation.
Consequently, the Court held that in the present case, the intending couple sought an order for parentage and custody of the child born through the surrogate mother, along with approval of surrogacy, which is permissible in law. The Court therefore set aside the order and remitted the matter back to the Judicial Magistrate with a direction to conduct an enquiry and pass appropriate orders in accordance with law within two weeks.
Accordingly, the Court allowed the petition.
[S. Prasanna v. M. Jothika, Crl. O.P. No .29464 of 2025, decided on 14-11-2025]
Advocates who appeared in this case:
For the Petitioners: N. Senthilkumar