Madras High Court Clarifies Surrogacy Eligibility Age for Women
In a significant ruling, the Madras High Court has clarified the age limit for women seeking surrogacy, interpreting the Surrogacy (Regulation) Act, 2021 to mean that women are eligible to opt for surrogacy until they reach 51 years of age. The decision came from Justice Shamim Ahmed, who addressed the age limits stipulated in Section 4(iii)(c)(I) of the Act, which states eligibility for women aged 23 to 50 years.
The Court emphasized that the phrase “between 23 to 50 years” should be understood to include women who are still 50 until they actually turn 51. This interpretation was crucial in the case of Nandhini Devi Vs State of Tamil Nadu, where the Court overturned a magistrate’s previous decision that denied a surrogacy application because the petitioner, Nandhini Devi, was 50 years, 9 months, and 3 days old at the time of application.
Presumption of Validity for Certificates
Justice Ahmed criticized the magistrate’s decision to reject the plea and emphasized that eligibility certificates issued by the District Medical Board and the Appropriate Authority are presumed valid unless proven otherwise. The Court noted that magistrates should not reassess these certificates unless they are evidently illegal or fraudulent.
Furthermore, the High Court clarified that the magistrate exceeded his jurisdiction by questioning the eligibility certificate and noted that the husband of the surrogate mother did not need to be examined, as per Section 4(iii)(a)(II) of the Surrogacy Act. This section only requires the intending couple and the surrogate mother to approach the magistrate for parentage and custody orders.
Guidelines for Magistrates on Surrogacy Cases
The judgment also laid out guidelines for handling surrogacy cases, emphasizing that these proceedings are intended to be facilitative and child-centric, not adversarial. The welfare of the child should be the primary concern. Justice Ahmed urged magistrates to avoid a hyper-technical approach and to treat the Surrogacy Act as beneficial legislation.
The Court outlined a streamlined process for magistrates, focusing on verifying the identity of the parties involved, consent of the surrogate mother and her husband, and ensuring there is no commercial surrogacy involved. These proceedings should ideally be resolved within four weeks, with deeper scrutiny reserved for cases with potential fraud or other serious concerns.
The High Court remanded the case back to the Namakkal Magistrate for reconsideration and instructed the petitioners to apply for an extension of their eligibility certificate. The appropriate authority was directed to expedite the issuance of this certificate, and the magistrate was instructed to pass new orders within four weeks of receiving it.
Senior Advocate John Sathyan represented the State of Tamil Nadu, with further assistance from Government Advocate M Dinesh. Hasan Mohamad Jinnah served as amicus curiae, offering additional insights into the case. The High Court’s decision is expected to have far-reaching implications for surrogacy cases across Tamil Nadu and possibly beyond.
