Celebrity couples sneak through surrogacy laws; authorities are unaware of legal provisions: Madras High Court

The Madras High Court recently directed the Tamil Nadu government to constitute district medical boards as mandated under the Surrogacy (Regulation) Act, 2021 and to ensure that the authorities are trained on the provisions of law surrounding surrogacy in India..Justice GR Swaminathan of the Madurai Bench highlighted the fact that the concerned authorities are not aware of how the law works."Celebrity couples particularly the super celebrity ones will sneak through the surrogacy laws and its cumbersome procedures. While the constitutionality of the Act is pending consideration before the Hon'ble Supreme Court, it appears that even those who are eligible under the Act are not able to have their treatment procedures done because the concerned authorities are unaware of the procedures to be followed.".The Bench said that though the Surrogacy Act was meant to streamline surrogacy procedures, several states were yet to constitute medical boards and publicise all provisions adequately. So, while celebrities were able to access surrogacy, several other eligible couples were left running from pillar to post, negotiating lengthy bureaucratic hurdles, it noted..The Court was hearing a petition filed by a couple seeking a direction to the Tirunelveli district medical board to issue them an eligibility certificate to undergo the surrogacy procedure at an IVF clinic in Coimbatore. The petitioners said they had written to the State government on February 24 this year, but were yet to get requisite permissions. The petitioner woman further told the Court that as per the Surrogacy Act, intending couples should be within the age limit of 23-50 years (females) and 26-55 (males) on the day of certification. She said she will turn 50 years old in October this year, and therefore, needed the eligibility certificate issued before October..Keeping this in view, the Court directed the State authorities to decide on the petitioners' representation within four weeks."The Act specifies that the intending couple should be within the age limit of 23-50 years (female) and 26-55 (male) on the day of certification. This means that couples who have already been struggling to have a child for many years and who have to painfully accept that their only way to have a child may be via surrogacy now also have the added burden of getting these procedures done before they run out of time to have a baby. So, the procedure to enable them to undergo surrogacy must be fast tracked. Otherwise, the right given by the statute will be frustrated by bureaucratic delay and the intending couple may never be able to have their own biological child," the order stated.It also said that the Surrogacy Act mandated that district medical boards be made available at every medical college hospital office, and that the government was obliged to ensure that authorities and members of the board were well-versed with the Act."They should be sensitized so that applications are disposed of expeditiously. Since the Act requires that the intending couple and the surrogate to apply to the Magistrate Court for order concerning the parentage and custody of the child to be born through surrogacy, the State Judicial Academy should conduct programs so that the judicial officers are fully acquainted with the statutory provisions," the High Court said. Advocate PM Vishnuvarthanan appeared for the petitioners. Government Advocate S Jeyapriya appeared for the State. .[Read order]