Madras High Court
S.Vijay Krishnan vs The State Of Tamil Nadu on 5 August, 2026
CRL RC No. 1301 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14-07-2026
PRONOUNCED ON : 05.08.2026
CORAM
THE HON'BLE MR.JUSTICE SHAMIM AHMED
CRL RC No. 1301 of 2026
1. Mr.Vijay Krishnan. S (48/M)
S/o V.K.Selvaraj,
R/ at Elroi Apartment F1 No.3,
Kundalakesi 2nd Street, Srinivasa Nagar,
Perungalathur, Kancheepuram,
Tamil Nadu-600063.
2. Mrs.S.Jayapriya, (47/F)
W/o Vijay Krishnan. S,
R/at No.5A S2 Flats, Tholkapiyar 1st Street,
Srinivasa Nagar, New Perungalathur,
Kancheepuram, Tamil Nadu-600063.
3. Mrs.Kowsalya. G, (28/F)
W/o R.Spurgen,
R/at Plot No.10, Thayumanaval Flat 2,
Sambandar Street, Bharathi Nagar,
Near Kannadasan Nagar Main Road,
Aadhanur, Madambakkam,
Kancheepuram, Tamilnadu-603202.
..Petitioner(s)
Vs
1. The State of Tamil Nadu
Represented by its Health Secretary,
Secretariat, Fort St.George,
Chennai-600009.
2. The Director of Medical and Rural Health
Services
359, Anna Salai,
Chokkalingam Nagar,
Teynampet,
Chennai-600006.
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3. The Appropriate Authority/ Joint Director of
Health Services
Chengalpattu District,
28, SH58, Mahalakshmi Nagar,
Tamil Nadu 603101.
(R1, R2 and R3 impleaded as per the order of
this court dated 02.07.2026 in
Crl.MP.No.11409 of 2026 in Crl.RC.No.1301
of 2026)
..Respondent(s)
Prayer: This Criminal Revision Case has been filed under Section 438 r/w. 442
of BNSS, 2023, praying to call for the records relating to Crl.MP.No.1011 of
2026 on the file of the learned Judicial Magistrate No.1, Tambaram, Chennai,
set aside the order dated 22.04.2026 dismissing the petition as not maintainable.
For Petitioner(s): Ms.A.Roshma Banu
For Respondent(s): Mr.M.M.I.Khaleel, Government Advocate
(Crl.Side)
ORDER
This Criminal Revision Case has been filed under Sections 438 and 442
of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to set aside the order
dated 22.04.2026 passed in Crl.M.P. No.1011 of 2026 by the learned Judicial
Magistrate No.I, Tambaram, Chennai, dismissing the petition filed under
Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, as not
maintainable and has also prayed before this Court to further direct the learned
Magistrate to issue the parentage and custody of the child to be born through
surrogacy.
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2.The facts leading to the filing of the present Criminal Revision Case are
briefly stated hereunder:
(a)The marriage between the Petitioners 1 and 2 was solemnized on
21.08.2006 at P.K. Mahal Thirumana Mandabam, Mylapore, Chennai, in
accordance with Hindu rites and customs. Despite several years of married life,
the Petitioners 1 and 2 were unable to conceive a child and therefore they
decided to obtain a child through surrogacy.
(b)The Petitioners 1 and 2 approached the competent authorities under the
Act and, upon scrutiny of their medical records and other relevant documents,
the Appropriate Authority issued Eligibility Certificate No.11/2706/A2/2024-1
dated 07.03.2026 certifying their eligibility to undergo surrogacy, valid from
01.03.2026 to 28.02.2027.
(c)The 3rd Petitioner, who had voluntarily agreed to act as the surrogate
mother for the child, also applied before the competent authority and was issued
Eligibility Certificate No.05/500/A2/2026 dated 07.03.2026 by the District
Medical Board, Chengalpattu District, certifying her eligibility to act as the
surrogate mother, valid from 07.03.2026 to 06.03.2027.
(d)The Petitioners had also obtained health insurance coverage in favour
of the surrogate mother for a period of thirty-six months commencing from
10.04.2026 to 09.04.2029, in compliance with the provisions of the Surrogacy
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(e)After complying with all the statutory requirements prescribed under
the Act, the Petitioners jointly filed Crl.M.P.No.1011 of 2026 before the learned
Judicial Magistrate No.I, Tambaram, Chennai, under Section 4(iii)(a)(ii) of the
Surrogacy (Regulation) Act, 2021 seeking an order concerning the parentage
and custody of the child to be born through surrogacy to the petitioners 1 and 2
and for consequential rights and for a direction to the 3 rd petitioner to relinquish
all her rights over the child to be born through the surrogacy as per the Act
2021.
(f)It is the specific case of the Petitioners that the petition was e-filed on
21.04.2026 together with the petition, supporting affidavit, proof affidavit and
all the relevant documents was presented before the learned Judicial Magistrate
on 22.04.2026. However, on the very same day, without issuing notice, without
affording the Petitioners an opportunity of hearing and without considering the
materials placed on record, the learned Judicial Magistrate dismissed the
petition as not maintainable.
3.The learned Judicial Magistrate, by the impugned order dated
22.04.2026, dismissed the Petition as not maintainable holding that the Court
exercising jurisdiction under the Bharatiya Nagarik Suraksha Sanhita, 2023, is
concerned only with criminal proceedings arising out of commission of offences
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and that the relief sought by the Petitioners was civil in nature. The learned
Magistrate further held that no offence under Sections 38 to 41 of the Surrogacy
(Regulation) Act, 2021 had been alleged and no complaint as contemplated
under Section 44 of the Surrogacy (Regulation) Act, 2021, had been lodged. On
the said reasoning, the learned Magistrate concluded that the Petition was not
maintainable. Aggrieved by the same, the present Revision has been filed.
4.Heard Mr.D.Vasantha Kumar, learned counsel appearing for the
Petitioners and Mr.M.M.I.Khaleel, learned Government Advocate (Crl.Side)
appearing for the respondents and also carefully considered the submissions
made and perused the entire materials available on record.
5.The short issue that arises for consideration in this Criminal Revision
Case is whether the learned Judicial Magistrate was justified in refusing to
entertain the Petition filed under Section 4(iii)(a)(ii) of the Surrogacy
(Regulation) Act, 2021 on the ground that the Court lacked jurisdiction.
6.Learned counsel for the petitioner submits that with regard to the
legislative intent behind the introduction of the Surrogacy (Regulation) Bill and
the statements and objectives of the Act, the Indian framework seeks to —
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(a) Protect surrogate mothers from exploitation,
(b) Prevent commercialisation of reproduction,
(c) Ensure ethical reproductive practices,
(d) Safeguard the welfare of children born through surrogacy,
(e) Regulate fertility clinics and ART procedures and
(f) Prevent trafficking and reproductive tourism.
7. For the sake of convenience, the Petitioners 1 and 2 and the 3 rd
Petitioner herein after referred to as the Intending Couple and Surrogate Mother,
respectively.
8.Before dealing with the correctness of the impugned order, it would be
necessary to understand the scheme of surrogacy legislation in its totality and
the intent of the Surrogacy (Regulation) Act, 2021.
9.Definition of Surrogacy:- The Supreme Court in its judgment
in Baby Manji Yamada vs Union of India [(2008) (13) SCC (518)], has
provided the definition of surrogacy:-
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CRL RC No. 1301 of 2026“9. The word “surrogate”, from Latin “subrogare”,
means “appointed to act in the place of”. The intended
parent(s) is the individual or couple who intends to rear
the child after its birth.”
10.Statutory Definition:- Under Section 2(1)(zd) of the Surrogacy
(Regulation) Act, 2021:
“Surrogacy” means a practice whereby one woman bears
and gives birth to a child for an intending couple or
intending woman with the intention of handing over the
child after birth to such intending couple or intending
woman.
Parties Involved
▪ Surrogate Mother – the woman carrying the pregnancy.
▪ Intending Couple – legally eligible couple seeking a child
through surrogacy.
▪ Intending Woman – an eligible woman permitted under
law to avail surrogacy.
▪ Surrogacy Clinic – medical facility conducting the procedure.
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11.Origin and Evolution of Surrogacy:-
The Honourable Supreme Court, in its judgment in Vijaya Kumari vs
Union of India(2026-2-SCC-96:2025 INSC 1209), had explained the
development of surrogacy in India, wherein “The first move towards
prohibition of commercial surrogacy came with the 228 th Report of the
Law Commission of India in 2009, which flagged the problem of India
becoming a “reproductive tourism destination” and wombs being “on
rent”.(Para 22) To prevent these forms of misuse of the procedure,
the Parliament enacted the Surrogacy (Regulation) Act, 2021 to
prohibit commercial surrogacy and permit only altruistic surrogacy
under regulated conditions.
12.Types of Surrogacy:- The case of Baby Manji Yamada vs Union of
India [(2008) 13 SCC 518] (Para 10 to 13), also explained the different
types of surrogacies, which are:
(i) Traditional Surrogacy
● The surrogate mother’s own egg is used.
● She is genetically related to the child.
● Conception usually occurs through artificial insemination.
● Surrogate is the biological mother.
● Not permitted under India's present legal framework.
(ii) Gestational Surrogacy
● The embryo is created through IVF and transferred to the surrogate.
● The surrogate has no genetic connection with the child.
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● Legally recognised under Indian law.
● Minimizes parental disputes.
(iii) Commercial Surrogacy
● Surrogate receives monetary compensation beyond medical
expenses and insurance.
● Surrogacy performed for profit, often involves contractual payments.
● Expressly prohibited under the Surrogacy (Regulation) Act, 2021.
(iv) Altruistic Surrogacy
● No monetary consideration except:
● Medical expenses,
● Insurance coverage,
● Prescribed ancillary expenses.
● Undertaken out of compassion or familial support.
● No commercial gain.
● This is the only form of surrogacy permitted under Indian law.
13.Objectives of Surrogacy Regulation:- With regard to the legislative
intent behind the introduction of the Surrogacy (Regulation) Bill and the
statements and objectives of the Act, the Indian framework seeks to:
A) Protect surrogate mothers from exploitation.
B) Prevent commercialisation of reproduction.
C) Ensure ethical reproductive practices.
D) Safeguard the welfare of children born through surrogacy.
E) Regulate fertility clinics and ART procedures.
F) Prevent trafficking and reproductive tourism.
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14.Legal Framework in India:-Primary Legislation
■ Surrogacy (Regulation) Act, 2021
■ Assisted Reproductive Technology (Regulation) Act, 2021
Important Rules
■ Surrogacy (Regulation) Rules, 2022.
■ Assisted Reproductive Technology (Regulation) Rules, 2022.
Regulatory Authorities
■ National Surrogacy Board.
■ State Surrogacy Boards.
■ Appropriate Authorities.
■ District Medical Boards.
15.STATUTORY SCHEME UNDER THE SURROGACY ACT, 2021:-
The Surrogacy Act creates a structured statutory mechanism
involving multiple authorities and the procedure laid down is as follows:-
Section 4(ii)::- No surrogacy procedure shall be conducted except for
the following purposes:-
▪ Couple of Indian Origin – S. 4(ii)(a) ▪ Couple shall obtain a certificate of recommendation from the
National Assisted Reproductive Technology and Surrogacy Board
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– S.4(ii)(a)
▪ Only for altruistic surrogacy purposes – S. 4(ii)(b)
▪ Not for commercial purposes – S. 4(ii)(c)
▪ Not for producing children for sale, prostitution or any other
form of exploitation – S. 4(ii)(d).
16.SURROGACY PROCEDURE – S. 4(iii):-
No surrogacy or surrogacy procedure shall be conducted unless the
Director or in-charge of the surrogacy clinic or person qualified to
do so are satisfied on the following conditions:-
a) Certificate of Essentiality – S. 4(iii)(a)
b) Eligibility certificate of surrogate mother – S. 4(iii)(b)
c) Eligibility certificate of intending couple – S. 4(iii)(c)
a)Certificate of essentiality, S. 4(iii)(a) – by appropriate authority (S.
35 – Appointment by the Central/State Government i.e District
Medical and Rural Health Services) after fulfilment of the following
conditions:-
● Certificate of Medical Indication by the District Medical Board
● Order concerning Parentage and custody of the child from the
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● Insurance coverage for the surrogate mother from an Insurance agencyPage11 of 40
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i) Certificate of – Considering Pregnancy not possible
medical indication –
S.4(iii)(a)(I) Rule 14 of The Surrogacy (Regulation)
By the District Rules, 2022:
Medical Board – Absence or missing or abnormal
uterus or if uterus is surgically
removed due to medical conditions
– Intended parent or woman has
repeatedly failed to conceive after
multiple In vitro fertilization
– Multiple pregnancy losses
– Any illness that makes it impossible
for woman to carry pregnancy or
making pregnancy life threatening
ii) An Order which shall be the birth affidavit of
concerning the surrogate child born
Parentage and
custody of the child
–
S. 4(iii)(a)(II)
By the Magistrate
of the first class or
above
iii) Insurance Rule 5of The Surrogacy (Regulation) Rules,
Coverage – S. 4(iii) 2022:
(a)(III) - Insurance in favour of surrogate
mother for 36 months for a sufficient
From an Insurance amount
Company - Intending couple/woman shall sign an
affidavit to be sworn before
Metropolitan Magistrate or Judicial
Magistrate of 1st class or Executive
Magistrate or Notary Public
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a) Essentiality certificate of Surrogate Mother:- S. 4(iii)(b):-
by appropriate authority after fulfilment of the following
conditions:-
Eligibility Certificate of I) Married woman
Surrogate Mother – S. 4(iii)(b) II) Having child of her own
III) Between ages of 25 to 35
years on the day of implantation
By Appropriate Authority
IV) Willing woman
V) Not provide her own gametes
VI) Not act as surrogate
mother more than once
VII) Certificate of medical
and psychological fitness
Other conditions as per Form 2:
Relinquish all rights over
the child to the intending
couple
b) Eligibility Certificate of Intending Couple – S. 4(iii)(c):-by
Appropriate Authority after fulfilling the following conditions:-
Eligibility Certificate of a) Married
Intending Couple – S. 4(iii)(c) b) Between 23 to 50 years –
female
By Appropriate Authority Between 26 to 55 years –
male On the date of
certification
c) Not had any surviving
child
(biological/adoption/surrogac
y earlier)
But can have a child – mentally or
physically challenged
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17.Prohibition to abandon child, S. 7:- The intending couple or
intending woman shall not abandon the child, born out of a
surrogacy procedure, regardless of the circumstances and the
reasons.
18.Rights of surrogate child, S.8:- The child born out of
surrogacy procedure, shall be deemed to be a biological child of the
intending couple, or intending woman and the said child shall be
entitled to all the rights and privileges available to a natural child
under any law.
19.The main grounds, on which the courts below had
dismissed the prayer of the Petitioners, seeking an order of parentage
and custody of the child to be born through surrogacy, are that
(1) The Petition fled under Section 4(iii) (a) (ii) of the Surrogacy Act 2021
is not maintainable.
(2) The Court exercising jurisdiction under the BNSS 2023 is concerned
only with criminal proceedings out of commission of offence and that
the relief sought by the petitioner was civil in nature.
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20. Now the question that arise in this case for consideration of this Court
are as follows:-
(1) Whether the learned Magistrate can dismissed the petition filed by the
petitioner under Section 4(iii)(a)(ii) of the Act as not maintainable?
(2) Whether the finding recorded by Trial Court that the Court exercising
Jurisdiction under BNSS 2023 is concerned only with criminal proceedings of
commission of an offence and the relief sought by petitioner was civil in nature?
(3) Whether the High Court can pass an order of parentage by itself to avoid
further delay? Or Whether the High Court can pass an order to remand the matter
back to the Magistrate for passing fresh orders for issuance of birth affidavit and
custody of the child to be born through surrogacy?
21.Having thus outlined the statutory architecture, we shall now proceed to
consider the facts of the present case and analyze the reasoning of the impugned
order in light of these legislative provisions and answer the above question as
framed.
22.The Surrogacy (Regulation) Act, 2021 has been enacted with the
avowed object of regulating the practice of surrogacy, prohibiting
commercial surrogacy, permitting only ethical altruistic surrogacy and
safeguarding the rights of the intending couple, the surrogate mother and
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the child born through surrogacy. The Act is a self-contained legislation
providing a complete statutory mechanism governing every stage of the
surrogacy process.
23.The Act creates various statutory authorities and assigns distinct
responsibilities to each of them. The District Medical Board is entrusted with
the responsibility of issuing the certificate of medical indication wherever the
intending couple seeks to avail surrogacy owing to medical necessity. The
Appropriate Authority constituted under the Act is empowered to verify
compliance with the statutory requirements and issue the certificate of
essentiality and eligibility. Apart from these authorities, Parliament has
consciously vested one further responsibility upon the Court of the
Magistrate of the First Class or above, namely, to pass an order concerning
the parentage and custody of the child to be born through surrogacy.
24.Section 4 of the Surrogacy (Regulation) Act, 2021 lays down the
conditions subject to which surrogacy can be undertaken. Clause (iii)(a)(ii)
of the Surrogacy (Regulation) Act, 2021 thereof specifically provides that an
order concerning the parentage and custody of the child to be born through
surrogacy shall be passed by the Court of the Magistrate of the First Class
or above on an application made by the intending couple/intending woman
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and the surrogate mother. Thus, the parentage order is not an incidental
requirement. It is one of the statutory preconditions mandated by
Parliament before the surrogacy process can lawfully proceed.
25.A careful reading of the statutory scheme leaves no manner of doubt
that the jurisdiction exercised by the Magistrate under Section 4(iii)(a)(ii) of the
Surrogacy (Regulation) Act, 2021 does not emanate from the general provisions
of the Bharatiya Nagarik Suraksha Sanhita, 2023. The source of jurisdiction is the
Surrogacy (Regulation) Act, 2021 itself. Therefore, while entertaining an
application under Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021,
the Magistrate is not exercising ordinary criminal jurisdiction relating to
investigation, inquiry or trial of offences. The Magistrate discharges a special
statutory function entrusted under a special enactment.
26.It is a settled principle of statutory interpretation that whenever a special
enactment confers jurisdiction upon a Judicial Magistrate to perform a specified
statutory function, the Magistrate is bound to exercise such jurisdiction in
accordance with the provisions of the special statute. The jurisdiction cannot be
declined merely because the subject matter may otherwise possess civil
consequences. The conferment of jurisdiction is a matter of legislative policy, and
once Parliament has designated the Court of the Magistrate of the First Class or
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above as the competent authority to pass an order concerning parentage and
custody, the Magistrate cannot refuse to exercise such jurisdiction by importing
concepts applicable to ordinary criminal proceedings.
27.The reasoning adopted by the learned Judicial Magistrate that the
Petition was not maintainable since the relief sought was civil in nature overlooks
the legislative scheme of the Surrogacy (Regulation) Act, 2021. It is trite that the
character of the relief sought cannot determine the jurisdiction of the Court when
the statute itself expressly designates the forum competent to entertain the
application. The source of the Magistrate’s jurisdiction is not the Bharatiya
Nagarik Suraksha Sanhita, 2023, but the special jurisdiction expressly conferred
under Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021.
28.The Surrogacy (Regulation) Act, 2021 is a complete code governing the
field of altruistic surrogacy. The Act contemplates a sequential process involving
different statutory authorities, each entrusted with distinct responsibilities. The
Appropriate Authority is required to examine the eligibility and essentiality of the
intending couple and the surrogate mother and issue the necessary certificates
upon being satisfied that the statutory requirements are fulfilled. Likewise, the
District Medical Board performs the functions specifically entrusted to it under
the Act. After completion of these statutory requirements, the intending couple
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and the surrogate mother are required to approach the Court of the Magistrate of
the First Class or above for obtaining an order concerning the parentage and
custody of the child to be born through surrogacy. The Magistrate thus occupies a
distinct place within the statutory framework and performs a specific function
assigned by Parliament.
29.This Court had occasion to examine the scope of the Magistrate’s
jurisdiction under the Surrogacy (Regulation) Act, 2021 in Nandhini Devi @
Srinandhini Devi Saravanan and others v. State of Tamil Nadu and others
(Crl.R.C. No.950 of 2026, dated 25.06.2026). After an elaborate consideration
of the statutory scheme, this Court held that the Act creates a comprehensive
mechanism assigning separate duties to the different statutory authorities and that
the Magistrate has been entrusted with the specific statutory responsibility of
passing an order concerning the parentage and custody of the child under Section
4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021. The Court further held that
while exercising such jurisdiction, the Magistrate cannot travel beyond the scope
of the statute nor refuse to discharge the function specifically entrusted by
Parliament.
30.In the said decision, this Court observed that the Magistrate exercises
only the jurisdiction specifically conferred by the Surrogacy (Regulation) Act,
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2021, and is not expected to assume any appellate or supervisory role over the
decisions taken by the Appropriate Authority or the District Medical Board.
Equally, the Magistrate cannot enlarge or curtail the scope of the enquiry by
importing conditions not contemplated under the Act. The enquiry before the
Magistrate is confined to satisfying himself regarding compliance with the
statutory requirements and thereafter passing an appropriate order concerning the
parentage and custody of the child.
31.The above principles squarely apply to the facts of the present case. The
learned Judicial Magistrate has proceeded on the erroneous premise that unless an
offence under Sections 38 to 41 of the Surrogacy (Regulation) Act, 2021 is
alleged or a complaint under Section 44 is filed, the Court lacks jurisdiction to
entertain the Petition. Such a construction finds no support whatsoever from the
language employed in Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act,
2021.
32.Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021 does not
stipulate, either expressly or by necessary implication, that the jurisdiction of the
Magistrate is dependent upon the existence of criminal proceedings. The
provision merely requires an application by the intending couple or intending
woman and the surrogate mother seeking an order concerning the parentage and
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custody of the child to be born through surrogacy. Once such an application is
presented, the Magistrate is obliged to examine the same in accordance with the
statutory framework.
33.The penal provisions contained in Sections 38 to 41 of the Surrogacy
(Regulation) Act, 2021 deal with offences such as commercial surrogacy,
exploitation of the surrogate mother and other prohibited acts. Section 44 of the
Act merely prescribes the manner in which cognizance of those offences may be
taken. Those provisions belong to an entirely different chapter of the Act dealing
with penal consequences. They neither control nor qualify the jurisdiction
conferred upon the Magistrate under Section 4(iii)(a)(ii) of the Surrogacy
(Regulation) Act, 2021. Reading such a condition into Section 4 of the Act would
amount to rewriting the statute, which is impermissible in law.
34.The finding of the learned Magistrate that the Petition was civil in
nature is equally unsustainable. The legislature, with full knowledge of the nature
of the relief, has consciously chosen the Court of the Magistrate of the First Class
or above as the authority competent to pass the order concerning parentage and
custody. When the statute itself specifies the forum, it is not open to the Court to
decline jurisdiction by characterising the proceedings as civil in nature. The
legislative mandate has to be given full effect.
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35.This Court had earlier, in Crl.O.P. No.29464 of 2025 dated
14.11.2025, categorically held that the order contemplated under Section 4(iii)(a)
(ii) of the Surrogacy (Regulation) Act, 2021, has necessarily to be passed by the
jurisdictional Judicial Magistrate and that the Magistrate cannot refuse to
entertain such an application on the ground of lack of jurisdiction. The relevant
observation reads thus:
“One of the requirements is that the Court of Magistrate of the First
Class or above has to pass an order concerning the parentage and
custody of the child to be born through surrogacy on an application
made by the intending couple or the intending woman and the
surrogate mother. The Act is very clear that the order has to be passed
by the Court of Magistrate of the First Class or above…”
36.The ratio laid down in the above decision has been reaffirmed in the
case of Nandhini Devi (supra). The legal position is therefore no longer res
integra. Once Parliament has conferred jurisdiction upon the Court of the
Magistrate of the First Class or above to pass an order concerning parentage and
custody under Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, the
Magistrate cannot refuse to entertain the application on the ground that no
criminal complaint is pending or that the relief sought has civil consequences.
Such a course would amount to declining to exercise a jurisdiction expressly
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vested by the statute.
37.From the discussion made above, this Court has no hesitation in holding
that the learned Judicial Magistrate has completely misdirected himself on the
scope and ambit of Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021.
The impugned order proceeds on the erroneous assumption that unless there
exists an allegation constituting an offence under the Act, the Court functioning
as a Criminal Court cannot entertain an application under the Surrogacy
(Regulation) Act, 2021. Such an approach is contrary to the express language
employed by Parliament and defeats the very object sought to be achieved under
the Act.
38.The Surrogacy (Regulation) Act, 2021 is a special enactment. It not
only regulates the entire process of altruistic surrogacy but also specifies the
authorities competent to discharge various statutory functions. The jurisdiction
conferred upon the Court of the Magistrate of the First Class or above under
Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, is a special statutory
jurisdiction, independent of the jurisdiction exercised under the Bharatiya
Nagarik Suraksha Sanhita, 2023. The Magistrate, while dealing with an
application under the said provision, does not function as a Criminal Court trying
an offence but as a statutory authority designated under the Act to pass an order
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concerning the parentage and custody of the child to be born through surrogacy.
39.It is a well-settled principle that where a statute expressly confers
jurisdiction upon a Court, such jurisdiction cannot be declined on grounds dehors
the statute. Equally well settled is the principle that a Court cannot add conditions
to a statutory provision which the legislature has consciously omitted. Section
4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, merely requires an
application by the intending couple/intending woman and the surrogate mother.
The provision nowhere stipulates that the existence of criminal proceedings,
registration of a criminal case or filing of a complaint under Section 44 of the Act
is a condition precedent for entertaining such an application. The reasoning
adopted by the learned Magistrate therefore amounts to reading into the statute
words which are not found therein.
40.The statutory function entrusted to the Magistrate is also limited in its
scope. The Magistrate is required to satisfy himself that the statutory
requirements prescribed under the Surrogacy (Regulation) Act, 2021, have been
complied with and thereafter pass an order concerning the parentage and custody
of the child. The Magistrate is not expected to sit in appeal over the satisfaction
recorded by the Appropriate Authority or the District Medical Board nor can he
enlarge the scope of enquiry beyond what is contemplated under the Surrogacy
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(Regulation) Act, 2021. By declining to entertain the Petition itself on an
erroneous assumption of lack of jurisdiction, the learned Magistrate has failed to
discharge the statutory obligation cast upon the Court.
41.This Court is therefore of the considered view that the learned Judicial
Magistrate has failed to exercise the jurisdiction expressly vested in the Court by
Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021. Such failure to
exercise jurisdiction constitutes a jurisdictional error warranting interference by
this Court in exercise of its revisional jurisdiction under Sections 438 and 442 of
the Bharatiya Nagarik Suraksha Sanhita, 2023, and the impugned order is liable
to set aside and reversed. The question 1 and 2 are accordingly answered.
42.Proceedings under Section 4(iii)(a)(ii) of the Surrogacy (Regulation)
Act, 2021, are beneficial, facilitative and child-centric proceedings and not
adversarial litigation. The welfare of the child is the paramount consideration
when determining custody. 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.
43.The Right to life under Article 21 provides the right and personal liberty
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to reproduce to live with satisfaction and dignity. The Child so brought to this
world by surrogacy will provide a better life in all aspects to the parents
(intending couple) and that will enable the intending couple to live with utmost
satisfaction. When such facets of Article 21 are involved, the Hon’ble Courts
have to give a liberal interpretation to the beneficial legislation instead of
depriving a couple their fundamental right under Article 21 on mere
technicalities.
44.In this case, due to the rejection of the application by the impugned
order, major injury was caused to the Petitioners and the Petitioners herein plead
to invoke the legal maxim Actus curiae neminem gravabit, which effectively
lays down that the act of court prejudices nobody and the court may undo the
wrong done to the party, by even considering the question of time.
45.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. In
this regard, it is relevant to refer to the following decisions:-
46. In 2026-2-SCC-96:Manu/SC/1410/2025 (Vijaya Kumari S Vs. Union of
India), the Honourable Supreme Court was pleased to observe, as under:-
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CRL RC No. 1301 of 2026“Concept of surrogacy:-
20.The first attempt at surrogacy regulation in India was in
the form of the “National Guidelines for Accreditation,
Supervision and Regulation of ART Clinics in India”, drafted
by the Indian Council of Medical Research (“ICMR”), and
approved by the Ministry of Health and Family Welfare,
Government of India in the year 2005. It defined “surrogacy”
as an “arrangement in which a woman agrees to carry a
pregnancy that is genetically unrelated to her and her husband,
with the intention to carry it to term and hand over the child to
the genetic parents for whom she is acting as a surrogate”. It
also prescribed a list of “general considerations” for surrogacy
procedures, for instance, HIV tests for prospective surrogate
mothers, mandatory adoption of the child by the genetic parents
and limits on how many times a woman can act as a surrogate.
Importantly however, the aforesaid Guidelines did not forbid
the practice of “commercial surrogacy”. This was also the case
in the subsequent draft ART Bill, 2008, which allowed the
surrogate mother to work out “the financial terms and
conditions of the surrogacy with the couple”.
21. “Surrogacy” as a concept was elaborated upon in great detail
by this Court in Baby Manji Yamada v. Union of India [Baby
Manji Yamada v. Union of India, (2008) 13 SCC 518] , wherein it
was observed as follows: (SCC pp. 523-24, paras 8-16)
“8. Surrogacy is a well-known method of reproduction whereby a
woman agrees to become pregnant for the purpose of gestating
and giving birth to a child she will not raise but hand over to a
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contracted party. She may be the child’s genetic mother (the more
traditional form for surrogacy) or she may be, as a gestational
carrier, carry the pregnancy to delivery after having been
implanted with an embryo. In some cases surrogacy is the only
available option for parents who wish to have a child that is
biologically related to them.
9. The word “surrogate”, from Latin “subrogare”, means
“appointed to act in the place of”. The intended parent(s) is the
individual or couple who intends to rear the child after its birth.
10. In traditional surrogacy (also known as the straight method)
the surrogate is pregnant with her own biological child, but this
child was conceived with the intention of relinquishing the child to
be raised by others; by the biological father and possibly his
spouse or partner, either male or female. The child may be
conceived via home artificial insemination using fresh or frozen
sperm or impregnated via IUI (intrauterine insemination), or ICI
(intracervical insemination) which is performed at a fertility
clinic.
11. In gestational surrogacy (also known as the host method) the
surrogate becomes pregnant via embryo transfer with a child of
which she is not the biological mother. She may have made an
arrangement to relinquish it to the biological mother or father to
raise, or to a parent who is themselves unrelated to the child (e.g.
because the child was conceived using egg donation, germ
donation or is the result of a donated embryo). The surrogate
mother may be called the gestational carrier.
12. Altruistic surrogacy is a situation where the surrogate receives
no financial reward for her pregnancy or the relinquishment of the
child (although usually all expenses related to the pregnancy and
birth are paid by the intended parents such as medical expenses,
maternity clothing, and other related expenses).
13. Commercial surrogacy is a form of surrogacy in which a
gestational carrier is paid to carry a child to maturity in her
womb and is usually resorted to by well-off infertile couples who
can afford the cost involved or people who save and borrow in
order to complete their dream of being parents. This medical
procedure is legal in several countries including in India where
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due to excellent medical infrastructure, high international demand
and ready availability of poor surrogates it is reaching industry
proportions. Commercial surrogacy is sometimes referred to by
the emotionally charged and potentially offensive terms “wombs
for rent”, “outsourced pregnancies” or “baby farms”.
14. Intended parents may arrange a surrogate pregnancy because
a woman who intends to parent is infertile in such a way that she
cannot carry a pregnancy to term. Examples include a woman
who has had a hysterectomy, has a uterine malformation, has had
recurrent pregnancy loss or has a health condition that makes it
dangerous for her to be pregnant. A female intending parent may
also be fertile and healthy, but unwilling to undergo pregnancy.
15. Alternatively, the intended parent may be a single male or a
male homosexual couple.
16. Surrogates may be relatives, friends, or previous strangers.
Many surrogate arrangements are made through agencies that
help match up intended parents with women who want to be
surrogates for a fee. The agencies often help manage the complex
medical and legal aspects involved. Surrogacy arrangements can
also be made independently. In compensated surrogacies the
amount a surrogate receives varies widely from almost nothing
above expenses to over $30,000. Careful screening is needed to
assure their health as the gestational carrier incurs potential
obstetrical risks.
22. The first move towards the prohibition of commercial
surrogacy came with the 228th Report [Ed.: Law Commission of
India, Report No. 228 on Need for Legislation to Regulate
Assisted Reproductive Technology Clinics as Well as Rights and
Obligations of Parties to a Surrogacy (August 2009)] of the Law
Commission of India in 2009, which flagged the problem of India
becoming a “reproductive tourism destination” (i.e. foreign
couples come to India for cost-effective surrogacy procedures)
and wombs being “on rent”. It concluded with the following
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recommendations, inter alia:
“1. Surrogacy arrangement will continue to be governed by
contract amongst parties, which will contain all the terms
requiring consent of surrogate mother to bear child, agreement of
her husband and other family members for the same, medical
procedures of artificial insemination, reimbursement of all
reasonable expenses for carrying child to full term, willingness to
hand over the child born to the commissioning parent(s), etc. But
such an arrangement should not be for commercial purposes.
2. A surrogacy arrangement should provide for financial support
for surrogate child in the event of death of the commissioning
couple or individual before delivery of the child, or divorce
between the intended parents and subsequent willingness of none
to take delivery of the child.
3. A surrogacy contract should necessarily take care of life
insurance cover for surrogate mother.
4. One of the intended parents should be a donor as well, because
the bond of love and affection with a child primarily emanates
from biological relationship. Also, the chances of various kinds of
child-abuse, which have been noticed in cases of adoptions, will
be reduced. In case the intended parent is single, he or she should
be a donor to be able to have a surrogate child. Otherwise,
adoption is the way to have a child which is resorted to if
biological (natural) parents and adoptive parents are different.
5. Legislation itself should recognise a surrogate child to be the
legitimate child of the commissioning parent(s) without there
being any need for adoption or even declaration of guardian.
6. The birth certificate of the surrogate child should contain the
name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother should be
protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical
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23. The question of age restrictions on the intending couple did not
arise in these prior frameworks and recommendations. For instance,
the ART (Regulation) Bill, 2008 imposed an age bracket of 21-45 years
within which one could become a surrogate mother. However, there
were no similar restrictions on the commissioning/intending couple. It
is only with the advent of the Act in the year 2022 that the age-
restrictions in Section 4(iii)(c)(I) have been created. Prior to the Act
therefore, in the absence of a legal bar, or for that matter any binding
surrogacy regulations, intending couples were free to bear children
through surrogacy procedures irrespective of their age.
58. In the result, we hold that Section 4(iii)(c)(I) does not have
retrospective operation and therefore, would not apply to the Petitioners
and Applicants who are the intending couples. We reiterate that we
have not considered the validity of the age restrictions in this but only
the applicability of the same to the Petitioners and the Applicants
herein. The Writ Petitions and the applications are allowed in the
aforesaid terms.”
47.In 2025-SCC-Online-Mad-9957 (S.Prasanna Vs. M.Jothika), the
Coordinate Bench of this Court was pleased to observe, as under:-
“7. Notably, the Act is a 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 Act seeks to provide a legally structured,
ethical and medically safe pathway for childless couples to
experience parenthood wherein the role of the judiciary assumes
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CRL RC No. 1301 of 2026great importance. A petition filed under this Act must not be dealt
with as though it is a routine application and Courts must keep in
mind that these are matters touching upon one of the deepest
aspirations of human life, the desire of childless couples to have a
child.
8. The judicial officers are therefore expected to approach such
petitions with sensitivity, responsibility and compassion ensuring
that the statutory safeguards under the Act are complied with,
without frustrating the beneficial objective of the legislation. The
learned Judicial Magistrate, Katpadi, without properly looking
into the provisions of the Act, has returned the petition
erroneously by placing reliance on the interim order passed by the
Apex Court in ARUN MUTHUVEL v. UNION OF INDIA (Writ
Petition (Civil) No. 756 of 2022 and connected cases on
05.02.2024 cited supra, in and by which, couples who had
approached the Supreme Court with regard to exemption in the
age criteria were directed to approach their respective
jurisdictional High Courts for mere ease of access of justice,
which is not at all applicable to the facts of the present case.
9. Further, it is seen that the learned Magistrate had repeatedly,
without understanding the sensitivity involved in this case, had
returned the petition on several occasions thereby, frustrating the
parties and acting contrary to the intent of the beneficial
legislation. As discussed supra, the order passed by the Apex
Court cited supra by the learned Magistrate is not applicable to
the facts of the present case. Even, in the very same case, the final
order passed by the Apex Court on 09.10.2025 is to the effect that
the age restrictions cannot be applied for the couples who started
surrogacy procedures before the 2021 Act and as stated above is
also not applicable to the present case of the petitioners. In the
present case, the intending couples/petitioners sought an order to
have parentage and custody of the child born through the
respondent/surrogate mother and an order of approval of
surrogacy, which is permissible in law.”
48.In Manu/DE/4285/2026 (Shewta Tuteja Vs. Union of India), the
High Court of Delhi was pleased to observe, as under:-
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CRL RC No. 1301 of 2026“ 11. There can be no quarrel with the proposition that the ART
Act is a beneficial regulatory legislation enacted with the object of
ensuring safe, ethical and regulated ART practices. Equally, the
concerns relating to maternal health and child welfare which
underlie the statutory framework cannot be disregarded. However,
while interpreting a regulatory statute touching upon reproductive
rights and decisional autonomy, the Court is also required to
adopt an interpretation which remains consistent with
constitutional values embodied under Article 21 of the
Constitution.
16. The Supreme Court in the case of Suchita Srivastava (supra)
recognised reproductive choice as an inseparable facet of
personal liberty under Article 21 of the Constitution. Similarly, in
Justice K.S. Puttaswamy (supra), decisional autonomy and
privacy in matters concerning family, procreation and bodily
integrity were held to be constitutionally protected interests. These
constitutional principles necessarily require that statutory
provisions regulating ART procedures receive a purposive
interpretation that advances constitutional freedoms while
preserving the regulatory object sought to be achieved by the
enactment.
17. The Punjab Haryana High Court in Sarabjit Kaur (supra)
while interpreting the provisions of the ART Act observed that the
primary purpose of the enactment is to regulate and supervise
ART clinics and banks so as to prevent misuse and unsafe
practices. The statutory framework ought not to be construed in a
manner defeating the very object underlying the legislation. The
restrictions which are not expressly contemplated under the statue
cannot be imported so as to defeat access to ART procedures. The
reasoning adopted in Sarabjit Kaur also assumes significance
inasmuch as the statutory framework imposes age restrictions
individually upon a woman and a man and not upon
“commissioning couple” as a composite unit. The legislative
scheme does not contemplate any joint or collective age restriction
for a “commissioning couple.”
27. This Court is also conscious of the fact that reproductive
rights and access to parenthood in the contemporary
constitutional jurisprudence cannot be reduced to purely technical
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CRL RC No. 1301 of 2026factual context in which such rights are asserted. The ART Act is
fundamentally regulatory in character. The object of the
enactment is to ensure ethical and safe ART practices and not to
create insurmountable barriers defeating legitimate continuation
of treatment processes already lawfully undertaken.
28. In view of the peculiar facts of the case, this Court is of the
considered opinion that denial of permission to utilise the
remaining five cryopreserved embryos solely on account of the
Petitioners having marginally crossed age threshold of the ART
process would not subserve the object of the ART Act.”
49.In all the above said decisions, the sum and substance is that the
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 Act is intended to provide a
legally structured, ethical and medically safe pathway for childless couples to
experience parenthood wherein the role of judiciary assume great importance.
The Courts also stressed on the need to uphold the welfare of intended parents
and surrogate mothers and mere technical lapses should not hinder the access
to parenthood.
50.In regard to answering Question (3) whether the High Court can pass
the order of parentage by itself to avoid further delay and pass an order for
issuance of Birth affidavit and custody of the child to be born through surrogacy.
As per Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, an order
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concerning the parentage or custody of the child to be born through surrogacy is
passed by the Court of the Magistrate of the first class or above on an
application made by the intending couple or the surrogate mother, which shall be
the birth affidavit after the surrogate child is born. 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 wpoman from birth, with
all corresponding rights of custody, inheritance and succession.
51. The Coordinate Bench of this Court, by the orders, dated
29.07.2025 and 08.08.2025, made in WP.Nos.26975 and 27020 of 2025 (X, Y
Vs. State), was pleased to observe, as under:-
“11. During the course of hearing, the format of one of the
parental order passed by a competent Court was placed before
this Court. On carefully going through the same, it is seen that the
concerned Court satisfies itself that intending parents do not have
any child either born naturally or through adoption or through
surrogacy and due to the medical condition are incapable of
having a child naturally and therefore the same necessitates
surrogacy. The court also satisfies itself that the lady who is going
to bear the child is willing to become the surrogate mother for that
couple. Apart from that, the concerned Court satisfies itself that in
case, the surrogate mother is married, consent of the husband is
also taken. The surrogate mother must also give a statement to the
effect that she will not claim the parental custody of the
child/children so born in future and that the birth certificate can
be granted in favour of the intending parents. The intending
parents must also give a statement to the effect that they will not
abandon the child/children so born, for any reasons whatsoever.
All the parties must also undertake that there is no commercial
surrogacy involved in the matter. The court must also be satisfied
that insurance coverage has been given to the surrogate mother.
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CRL RC No. 1301 of 2026Apart from that, the court must also be satisfied that the intending
parents have been granted certificate of medical indication and
certificate of eligibility by the Medical Board. After satisfying
itself regarding all these requirements, the parentage order is
passed and the court declares that the intending parents will be
declared as a lawful parent of the child/children to be born and
the order will be treated as the birth affidavit after the child is
born.
14.On the one hand, the interest of the intending parents is
involved and on the other hand, the right and autonomy of the
surrogate mother is hanging in a balance. Apart from that, the
surrogate mother is now 17 weeks/19 weeks pregnant with twins.
Therefore, it also involves the right of the unborn child. Under
such circumstances, when the same is pitted against the non
compliance of the mandatory procedure under the Act, this Court
has to necessarily lean in favour of protecting the interest of the
petitioners/intending parents, surrogate mother and the unborn
child. This Court must also exercise its Parens Patriaa
jurisdiction in a case of this nature.
16. In the upshot of the above discussion, this Court is inclined to
pass the parental order after examining the petitioners/intending
parents and the 5 th respondent/surrogate mother and after
satisfying itself that all the other procedures are followed. The
procedure that has been followed in this case has already been
tabulated and extracted supra. ”
52.In the above case, in view of the facts and circumstances of the case,
the Hon’ble High Court has itself passed a parentage order, declaring the
intending couple as the lawful parents of the child to be born. The parentage
order was treated as birth certificate of the surrogate child.
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53.In view of the foregoing discussion and observation and in the light of
the various decisions referred to above, this Court is of the considered opinion
that the impugned order dated 22.04.2026 passed in Crl.M.P. No.1011 of 2026 by
the learned Judicial Magistrate No.I, Tambaram, Chennai, cannot be sustained in
law and is liable to be set aside and reversed.
54.Accordingly, the Criminal Revision Case is allowed in favour of
protecting the interest of the petitioner/intending couple, surrogate mother and the
unborn child with the following directions:
(i)The order dated 22.04.2026 passed in Crl.M.P. No.1011 of 2026 by the
learned Judicial Magistrate No.I, Tambaram, Chennai, is hereby set aside and
reversed.
(ii) The Court is satisfied that all the procedures has been followed as per
the Surrogacy (Regulation) Act, 2021 and the certificate of eligibility issued by
the Medical Board as per the Act is valid and after satisfying all these
requirements the parentage order is passed by this Court and the Court further
orders that the intending couples will be declared as lawful parents of the child to
be born through surrogate mother and the order will be treated as the birth
affidavit/certificate after the child is born;
(iii)The custody of the child born shall vest with the intending
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CRL RC No. 1301 of 2026couple/parents immediately upon birth of the child. The child born out of
surrogacy procedure, shall be deemed to be a biological child of the intending
couple, or intending woman and the said child shall be entitled to all the rights
and privileges available to a natural child under any law.
(iv)The intending couple/parents shall not abandon the child, born out of a
surrogacy procedure, regardless of the circumstances and the reasons.
(v) The surrogate mother shall not claim the parental custody of the child
so born in future;
(vi)There shall be no commercial surrogacy involved in this case at any
point of time;
55.Accordingly, in view of the above directions, the question no.3 is
answered.
56.There shall be no order as to costs.
57.Registry of this Court is directed to communicate a copy of this order to
the learned Magistrate for compliance and information.
05-08-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
SHA
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To
1. The Health Secretary, Secretariat, Fort St.George, Chennai-600009.
2. The Director of Medical and Rural Health Services
359, Anna Salai,Chokkalingam Nagar,Teynampet,
Chennai-600006.
3. The Appropriate Authority/ Joint Director of Health Services
Chengalpattu District,28, SH58, Mahalakshmi Nagar,
Tamil Nadu 603101.
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SHAMIM AHMED, J.
SHA
Pre-Delivery Order in
CRL RC No. 1301 of 2026
05-08-2026
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