50 going on 51? Madras High Court clarifies age till which woman is eligible for surrogacy

The Madras High Court recently held that women are eligible to opt for surrogacy through their 50th year until they turn 51 years of age, which is the upper age limit prescribed for intending mothers under the Surrogacy (Regulation) Act, 2021 [Nandhini Devi Vs State of Tamil Nadu].

Justice Shamim Ahmed said the expression “between 23 to 50 years” under Section 4(iii)(c)(I) (age limits of intending parents) of the Surrogacy (Regulation) Act, 2021 must be read to include a woman who has completed 50 years but has not yet attained the age of 51.

The Court concluded that the age limit of 50 years under the Act should be read to include the age of an intending mother until she turns 51.

"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,” the Court observed.

The Court also issued guidelines on how magistrates should deal with applications for birth affidavits of children to be born through surrogacy, warning that a hypertechnical approach cannot be adopted in such cases.

The Court was hearing a criminal revision petition filed by Nandhini Devi, her husband Saravanan and their relative Kiruthiga Perumal, who had agreed to act as the surrogate mother.

The couple had married in 2005 and had a son in 2008. Their son died of cardiac arrest in November 2024. Since Nandhini Devi had undergone removal of her uterus and was medically incapable of carrying a pregnancy, the couple decided to have another child through surrogacy.

The appropriate authority issued an eligibility certificate to the couple in May 2025. The proposed surrogate mother was also issued an eligibility certificate in December 2025.

They then approached the Judicial Magistrate, Namakkal seeking an order concerning parentage and custody of the child to be born through surrogacy.

However, the magistrate rejected the plea on March 18 this year. The magistrate held that Nandhini Devi was 50 years, 9 months and 3 days old when she applied for the eligibility certificate and had therefore crossed the age limit under the Act. The Magistrate also held that the husband of the surrogate mother had not been examined.

The High Court set aside this order.

It held that the magistrate had exceeded his jurisdiction by reassessing the eligibility certificate issued by the appropriate authority.

“Certificates issued by the District Medical Board and Appropriate Authority carry a presumption of validity. Unless set aside by a competent forum or shown to be ex-facie illegal, fraudulent or without jurisdiction, the Magistrate ought not to reassess the merits of such certificates,” the Court said.

The Court further clarified that a magistrate cannot function as an appellate authority over the District Medical Board, Appropriate Authority, Insurance Authority or registered ART/surrogacy clinics.

The Court also rejected the magistrate’s finding that non-examination of the surrogate mother’s husband was fatal to the proceedings.

It held that Section 4(iii)(a)(II) of the Act only requires the intending couple or intending woman and the surrogate mother to approach the magistrate for an order concerning parentage and custody. The provision does not require the surrogate mother’s husband to be made a party or examined, the Court said.

The Court noted that the eligibility certificate issued by the appropriate authority already took into account the consent of the surrogate mother’s husband.

The Court further made strong observations on how surrogacy cases must be handled by magistrates under Section 4(iii)(a)(II) of the Surrogacy Act.

Section 4(iii)(a)(II) requires intending parents to approach a judicial magistrate for an order concerning the parentage and custody of the child to be born through surrogacy, which becomes the surrogate child’s birth affidavit after the child is born.

The Court said that proceedings under Section 4(iii)(a)(II) are beneficial, facilitative and child-centric proceedings and not adversarial litigation. The welfare of the child is the paramount consideration, the Court added.

“The jurisdiction exercised by the Magistrate is protective in nature and intended to safeguard, (a) the welfare of the child, (b) the rights of the intending parents; and (c) the autonomy of the surrogate mother,” the order said.

The Court pointed out that the Surrogacy Act is a beneficial legislation and should not be interpreted in a hyper-technical manner.

“This court has, in most of the cases, seen that the Magistrates are hyper-technical and are not considering this Act, as a Beneficial Legislation,” the Court observed.

The High Court proceeded to lay down guidelines for magistrates dealing with applications for parentage and custody orders in surrogacy cases.

It said that magistrates must verify the identity of the parties, consent of the surrogate mother, consent of her husband, the surrogate mother’s undertaking not to claim parental custody, the intending parents’ undertaking not to abandon the child and the absence of commercial surrogacy.

However, the Court clarified that such interaction need not become a full-fledged trial.

The Court added that such cases should ideally be disposed of within four weeks, and that deeper a deeper scrutiny of applications by intending parents need only be undertaken in exceptional cases where there are suspicions of fraud, forgery, flawed consent, danger to the surrogate child etc. 

The High Court remanded the present case back to the Namakkal Magistrate for fresh consideration.

It also directed the petitioners to apply within two weeks for the extension of their eligibility certificate, which had expired during the pendency of the case. The appropriate authority was directed to issue the extended certificate within two weeks thereafter.

The magistrate was directed to pass fresh orders within four weeks from the receipt of the eligibility certificate.

The Registrar General of the High Court was also requested to circulate the order to all Principal District Judges for information and compliance.

The petitioners were represented by Advocates Niranjan Rajagopalan and T E Krishna of GR Associates.

Senior Advocate John Sathyan, counsel for the State of Tamil Nadu on the criminal side, assisted by Government Advocate M Dinesh, appeared for the State.

Senior Advocate Hasan Mohamad Jinnah appeared as amicus curiae, assisted by Advocates J R Archana, T Harshana and S Prajesh Kumar.

[Read Judgment]