On June 25, 2026, Justice Shamim Ahmed of the Madras High Court issued comprehensive surrogacy magistrate guidelines on parentage and custody applications, ordering all magistrate courts in Tamil Nadu to decide such petitions within four weeks.
The judgment, cited as 2026 LiveLaw (Mad) 281, simultaneously set aside a Namakkal Judicial Magistrate’s rejection of a surrogacy parentage application — and directed the Registrar General to circulate the ruling to every Principal District Judge in the state for uniform compliance, according to LiveLaw.
Background: How We Got Here
The petitioners, a couple married on February 21, 2005, suffered the devastating loss of their only child — a son born on September 21, 2008 — who died of cardiac arrest in November 2024. The intending mother had also undergone a total abdominal hysterectomy, making natural pregnancy impossible, per LawTrend.
The couple obtained an eligibility certificate from the appropriate authority in May 2025, and their proposed surrogate mother — a relative — received her eligibility certificate in December 2025, as reported by Bar & Bench.
- On March 18, 2026, Judicial Magistrate No. I, Namakkal rejected the couple’s parentage application (Crl.MP.No.258 of 2026) on two grounds: that the intending mother, aged 50 years, 9 months, and 3 days, was age-ineligible under the Surrogacy (Regulation) Act, 2021, and that the surrogate mother’s husband had not been examined before the court.
- The couple challenged this order before the High Court in CRL RC No. 950 of 2026. During pendency of the revision case, their eligibility certificate expired on May 22, 2026, per LawTrend.
- Senior Advocate Hasan Mohammed Jinnah appeared as amicus curiae; Advocate Niranjan Rajagopalan appeared for the petitioners; and Senior Advocate John Sathyan appeared for the respondents.
The Ruling — Key Findings
Justice Shamim Ahmed allowed the criminal revision petition, set aside the magistrate’s March 18 order, and remanded the matter for fresh consideration within four weeks, according to ETV Bharat and LawTrend.
On the age question, the Court interpreted Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 — which sets the eligibility age of intending mothers at between 23 and 50 years — in the petitioner’s favour. As reported by Bar & Bench, Justice Shamim Ahmed held:
“If a woman is stated to be aged 50 years, until she attains 51 years, it can be stated that she remains at the age of 50 years.”
On the magistrate’s power to scrutinise certificates, the Court drew a firm line. Justice Shamim Ahmed declared: “The Magistrate shall not function as an appellate authority over the District Medical Board, Appropriate Authority, Insurance Authority or Registered ART/Surrogacy Clinics.” He added that “The Certificates issued by the District Medical Board and Appropriate Authority carry a presumption of validity,” per Verdictum.
Deeper scrutiny is warranted only in exceptional cases involving suspicions of fraud, forgery, flawed consent, or danger to the surrogate child, as reported by Bar & Bench. A certificate can only be revisited if it is shown to be ex-facie illegal, fraudulent, or issued without jurisdiction.
The Court further held that non-examination of the surrogate mother’s husband is not fatal to parentage proceedings. The statute does not mandate his examination before the magistrate, as his consent is already verified by the appropriate authority, per Verdictum.
Applying the legal maxim actus curiae neminem gravabit — an act of the court shall prejudice no one — Justice Shamim Ahmed directed the appropriate authority to extend the petitioners’ expired eligibility certificate for a further one year, since it had lapsed during the pendency of the revision proceedings on May 22, 2026, according to LawTrend.
The surrogacy magistrate guidelines issued by the Court require magistrates to verify party identity, the voluntariness of the surrogate mother’s consent, an undertaking by the surrogate not to claim parental rights, an undertaking by intending parents not to abandon the child, and the absence of commercial surrogacy under Section 3(ii) of the Act, as reported by Bar & Bench.
Reactions & What’s Next
The Registrar General of the Madras High Court has been directed to circulate the judgment to all Principal District Judges across Tamil Nadu to ensure uniform implementation of the new surrogacy magistrate guidelines, according to ETV Bharat and LawTrend.
The Namakkal Judicial Magistrate must now reconsider the couple’s parentage application afresh within four weeks, in accordance with the guidelines laid down in this judgment.
Full coverage: LiveLaw. More legal news at The Courtroom.
What surrogacy magistrate guidelines did the Madras High Court issue for parentage and custody applications?
The Court directed magistrates to verify party identity, the voluntariness of the surrogate mother’s consent, her undertaking not to claim parental rights, the intending parents’ undertaking not to abandon the child, and confirmation that no commercial surrogacy is involved. Magistrates must decide such petitions within four weeks and cannot re-examine eligibility certificates unless they are ex-facie illegal, fraudulent, or without jurisdiction.
Can a magistrate reject a surrogacy application because the intending mother has turned 50?
No. The Madras High Court held that a woman who has completed 50 years but has not yet attained 51 years remains within the statutory eligibility age of “between 23 to 50 years” under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The magistrate at Namakkal erred in rejecting the application on this ground.
Is examination of the surrogate mother’s husband mandatory in surrogacy parentage proceedings?
No. The Madras High Court held that non-examination of the surrogate mother’s husband is not fatal to parentage and custody proceedings. The statute does not mandate it, and his consent is already verified by the appropriate authority before the eligibility certificate is issued.
Disclaimer
Disclaimer: This article is for general information only and does not constitute legal advice. Laws may change or vary by case — consult a qualified lawyer before acting. The Courtroom is not liable for any reliance on this content.
