New Delhi: A rigid, hyper-technical approach that has characterised the operation of India’s surrogacy law has been done away with by the Madras High Court in a ruling that most experts have welcomed as progressive and liberal.
Calling the Surrogacy (Regulation) Act 2021 a beneficial legislation, the Madras High Court has ruled that its advantage can be availed of by women throughout their 50th year, that is till they turn 51. In other words, a woman’s right to have a child via surrogacy does not cease instantly on her 50th birthday.
In what is a big win for the elderly intending to opt for surrogacy, a bench of Justice Shamim Ahmed also issued guidelines for magistrates to consider in dealing with surrogacy pleas, and said that courts should refrain from adopting a “hyper-technical approach” to the 2021 surrogacy law.
“Surrogacy Act is 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 said in a 49-page judgement, adding that the law was intended to provide a legally structured, ethical and medically safe pathway for childless couples to experience parenthood.
Significantly, this 25 June order was passed on the plea of an elderly couple, who lost their only child two years back owing to cardiac arrest, and wished to become parents again.
While most lawyers hailed the ruling as a “progressive” and “liberal” interpretation of the 2021 Act, intended to benefit intending couples and surrogate mothers while keeping in mind the welfare of children, others call it a departure from existing precedents, where courts have narrowly interpreted the 2021 Act, setting the upper age limit for intending mothers at 50 years, and no more.
In a nutshell, the ruling says that a woman who intends to opt for surrogacy, can do so until she turns 51. Rejecting the trial court’s order as misconceived and perverse, the court said that the Surrogacy (Regulation) Act is beneficial legislation, enacted with the primary object of regulating surrogacy in India.
Advocate Mohini Priya, who specialises in surrogacy laws, told ThePrint that the high court has “rightly rejected a hyper-technical interpretation of the Surrogacy Act and reaffirmed that a beneficial legislation must be construed to advance, rather than defeat, its object”.
“The surrogacy process involves multiple statutory approvals that often take months to complete. It is not uncommon for intending parents to commence the process well within the prescribed age limit, only to become ineligible because of administrative delays beyond their control. In reproductive medicine, time is biological, not merely procedural,” Priya said, adding that statutory rights cannot be rendered illusory by bureaucratic timelines.
“In the present ruling, the Madras High Court has interpreted a beneficial statute in the most beneficial way possible,” said Advocate-on-Record Ameyavikrama Thanvi. She also added that the Act specifically prohibits commercial surrogacy, or any surrogacy in exchange for consideration. “This was done to prevent womb shopping and to curb the menace of India becoming a reproductive tourism destination,” she told ThePrint.
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The case and the law
In the present case, the court was acting on the plea of an elderly couple who lost their only child, and had opted for surrogacy. The couple were married in February 2005, and a son was born to them three years later. However, in November 2024, their only son passed away due to a heart attack.
Since then, the couple had attempted having another child, but because the wife had no uterus, she was medically “incapable” of carrying a pregnancy, and had to opt for surrogacy. Subsequently, the couple had approached the Dharan Hospital at Salem to initiate the procedure of surrogacy and received an eligibility certificate from the appropriate authorities in May last year, after their documents and medical records were verified.
One of the couples’ relatives had also agreed to act as a surrogate for them. Consequently, the couple moved the Namakkal court, under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021, seeking an order concerning the parentage and custody of the child.
However, on 12 March this year, a lower court rejected their plea for a parentage and custody order, which would legally recognise the child born through surrogacy. The ground for rejection was that the surrogate mother’s husband’s consent was not factored in. Simply put, the couple sought a direction to the surrogate mother to relinquish all her rights over the child born to her through surrogacy. During this time, however, the eligibility certificate given to the couple, and valid from May 2025 to 2026, expired while the case was still pending.
This is what led the intending parents to approach the Madras High Court, seeking relief in the form of a parentage order, and an extension for the certificate till 22 May 2027, so that justice may be done.
“The order of parentage acts as a birth affidavit that ensures that the child is treated in law as the biological and legitimate child of the intending couple/intending woman from birth, with all corresponding rights of custody, inheritance and succession,” the court said.
What the court ruled
Citing the right to life envisaged under Article 21 of the Constitution, the court said that when facets of this fundamental right come into the picture, the courts have to adopt a liberal interpretation rather than deprive a couple their fundamental right, based on mere technicalities.
Invoking the Latin legal maxim ‘Actus curiae neminem gravabit’, which translates into the doctrine that an act of court shall prejudice no one, the bench said that the intending couple had suffered due to the lower court’s order, and their eligibility certificate expired due to long delay in the decision by the learned magistrate.
In such a scenario, magistrates must not adopt a “hyper-technical approach”, it said while adding that the overall beneficial intent of the statute must be looked at.
It also directed the appropriate authority to consider the request made by the intending parents, in the interest of justice, as the eligibility certificate expired during the pendency of the case before the trial Court as well as before the high court.
The court also laid down some guidelines for magistrates to follow while looking at cases under the Surrogacy Act, in the interests of uniformity and to avoid unnecessary hardships to intending couples, surrogate mothers and children born through that route.
For starters, the court made it clear that the role of a magistrate is confined to ensuring voluntariness, statutory compliance, legal certainty and welfare of the child. The magistrate cannot sit in appeal over findings recorded by the District Medical Board, or the appropriate authority, except where fraud, or luck or jurisdiction or patent illegalities are apparent.
However, magistrates must verify whether the petitions or affidavits contain the identity of the parties, along with valid documents. They must also look at whether the consent of the surrogate mother is taken and if she is married or not. He must get a statement from the surrogate parents that they will not claim parental custody of the child born in future, and that birth certificate will be granted to the intending parents instead. The intending parents, who opt for the surrogacy procedure, will have to make sure they do not abandon the child, for any reason whatsoever. Finally, the magistrate must make sure that the act of surrogacy does not have any commercial connotations whatsoever.
Voluntariness, awareness of legal consequences, and absence of coercion and undue influence must all be looked at, the court said. The surrogate must also say that she has voluntarily agreed to the agreement, and has no objection with the intending parents taking the child. The magistrate must also dispose of the applications for surrogacy expeditiously, preferably within four weeks from when the application is made before him.
The magistrate can interfere in exceptional cases, however, such as when fraud is being alleged, consent is doubtful, commercial surrogacy is suspected or documents appear fabricated, and documents are illegal. If any of these cases appear before the magistrate, he may interfere.
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What experts say
Speaking to ThePrint, Dr Sonali Kusum, who was invited by the Rajya Sabha Committee on Health and Family Welfare in August 2017 to present her suggestions on the Surrogacy Bill 2016, said, “The 2021 Act established strict age limits for intending parents: women must be between 23 and 50 years of age, and men between 26 and 55. However, the Supreme Court has found inconsistencies in India’s reproductive regulation, since there is no age bar for couples who wish to adopt children under the provisions of the Hindu Adoptions and Maintenance Act 1956.”
Dr Kusum, Assistant Professor at the Tata Institute of Social Sciences (TISS), Mumbai, weighed in on the Madras High Court ruling and said, “The 2021 Act differentiates intending mothers (those who wish to have a child through surrogacy) and surrogate mothers (those willing to conceive as a surrogate for an intending mother), and prescribes different age limits for each of them.”
For intending mothers who want to have a child through surrogacy, the age limit is 50 years. “Under the same Act, if a woman wants to be a surrogate instead, the age limit is 49,” Kusum told ThePrint. “However, when it comes to single women like divorcees, widows or unmarried women, the Surrogacy Act 2021, restricts the age limit to 45 years for availing surrogacy procedures,” the professor told ThePrint, questioning the law’s divergence in setting age limits for different categories.
According to Sanchita Ain, Advocate-on-Record, Supreme Court, the Act also has some discrepancies. One prerequisite for ensuring a woman’s eligibility for having a child via the surrogacy route is the absence of surviving children. “Only childless couples can opt for surrogacy under this law,” Ain said.
However, the provision allowing couples with a child who is “physically or mentally challenged” to access surrogacy, while denying the same option to other parents, reinforces entrenched stigma surrounding disability, Ain points out. In her opinion, the law implicitly suggests that a child with a disability is somehow an inadequate fulfilment of parenthood, a premise that is discriminatory and contrary to the constitutional values of equality and dignity.
Additionally, Ain criticised the requirement that only “ever-married” women with children of their own can act as surrogate mothers or donate eggs provided they are between 25 and 35 years of age. She argues that these conditions appear arbitrary and unduly restrict women’s reproductive autonomy.
Advocate Urja Pandey, Counsel for Union of India, Supreme Court, told ThePrint that people often tend to underestimate what a woman goes through before she even reaches the stage of considering surrogacy. “Years of infertility, invasive medical procedures, hormonal treatments, repeated disappointments, and the constant emotional burden leave scars that are rarely visible. Seeking surrogacy is seldom a matter of convenience; it is usually the result of exhausting every other possibility,” she said.
As for the Madras High Court ruling, Pandey said that the court has “rightly recognized” that laws governing reproductive rights must be interpreted with compassion and common sense. “The law must never become another obstacle in a journey that has already demanded so much courage,” she said.
Finally, advocate-on-record Ameyavikrama Thanvi said that when looking at the age limits prescribed under India’s surrogacy laws, one must understand that the wordings in sections pertaining to age barriers have been put there very carefully. Pointing to the age limits under different laws like the Prevention of Children from Sexual Offences Act, 2012 and the Assisted Reproductive Technology (Regulation) Act which prescribe age limits, she said that a beneficial law like the 2021 Act must be interpreted in a way that provides the maximum benefit to all stakeholders involved.
(Edited by Nardeep Singh Dahiya)