urrogacy (Regulation) Act, 2021 – Sections 4(iii)(a)(II) and 4(iii)(c)(I) – Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 438 and 442 – Revision against the dismissal of the application for an order concerning the parentage and custody of the child to be born through surrogacy – Held : Certificates issued by the District Medical Board and the Appropriate Authority carry a presumption of validity and unless 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 does not mandate the examination of the husband of the surrogate mother,whose consent is taken into account in the Eligibility Certificate – The expression “between 23 to 50 years” includes a woman who has completed 50 years but has not attained 51 years – Guidelines issued for Magistrates- Impugned order set aside and matter remanded – Criminal Revision Case allowed.
This Criminal Revision Case, under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is filed by the intending couple and the surrogate mother to set aside the order dated 18.03.2026 in Crl.M.P.No.258 of 2026 passed by the learned Judicial Magistrate No. I, Namakkal.
Petitioners 1 and 2 were married on 21.02.2005 and their son, born on 21.09.2008, died on 06.11.2024. The 1st petitioner, being medically incapable of carrying a pregnancy, decided to have a child through surrogacy. The Dharan Hospital at Salem initiated the procedure under the Act and the Appropriate Authority issued the Eligibility Certificate dated 23.05.2025 to the couple. The 3rd petitioner, agreed to be the surrogate mother and was issued the Eligibility Certificate dated 22.12.2025, with her husband’s consent.
On the petitioners’ application under Section 4(iii)(a)(II) of the Act for an order concerning the parentage and custody of the child, the court below dismissed it on two grounds –
1. Age ineligibility, the limit being 23 to 50 years and the 1st petitioner being 50 years 9 months and 3 days on the date of her application and
2. Non-examination of the surrogate mother’s husband. Hence, the revision. The Hon’ble High Court held that the Magistrate’s role under Section 4(iii)(a)(II) is limited only to passing the order concerning parentage and custody and does not extend to sitting in appeal over certificates issued by other agencies. Certificates issued by the District Medical Board and the Appropriate Authority carry a presumption of validity and unless 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 court below had thus exceeded its jurisdiction.
The finding that non-examination of the surrogate mother’s husband is fatal to the proceedings was held perverse, since the Eligibility Certificate itself takes his consent into account. The Hon’ble high court relying upon the ratio of the Kerala High Court’s Division Bench in Rajitha P.V. v. Union of India 2025-SCC -Online-Ker-1624 , held that eligibility of an intending woman extends throughout the 50th year,and the finding that the 1st petitioner did not satisfy “between 23 to 50 years” is misconceived and perverse.
The Parentage and Custody order transfers parenthood to the intending parents even before the child’s birth and acts as a birth affidavit, treating the child as the biological and legitimate child of the intending couple. Such proceedings shall be beneficial, facilitative and child-centric, not adversarial litigation.
The Hon’ble High Court of Madras framed the following guidelines:
i. The magistrate shall verify the identity of the parties, the consent of the surrogate mother and of her husband, the statement that she will not claim custody and the intending parents will not abandon the child.
ii.The magistrate shall interact with the parties to satisfy voluntariness.
iii.The magistrate shall satisfy himself that no commercial consideration is involved.
iv. The intending parents shall undertake to accept the child immediately after birth and not abandon the child. The surrogate mother shall undertake that she voluntarily agreed to act as surrogate, has no objection to parentage being vested to the intending parents and shall not claim custody subsequently.
v . The magistrate shall ensure that the welfare of the child shall remain the paramount consideration.
vi Dispose of applications preferably within four weeks.
vii. Undertake deeper scrutiny only where fraud, fabrication or danger to the welfare of the child is apparent on the face of the record.
The Hon’ble High Court allowed the Criminal Revision Case, set aside the impugned order and remanded the matter for fresh consideration. The petitioners were directed to apply within two weeks for extension of the eligibility
Nandhini Devi Vs. State of Tamil Nadu, Rep. by its Health Secretary and Others - Crl.R.C.No.950 of 2026 - Madras High Court - Date of Judgment: 25.06.2026
