The Madras High Court has established that a child born through surrogacy is legally deemed the biological child of the intending couple, granting the child full rights and privileges of a natural child while affirming the couple as lawful parents. Justice Shamim Ahmed issued the ruling on August 5, overturning a lower court order that had dismissed the couple’s petition for legal parentage and custody.
Under the High Court order, legal custody of the unborn child will automatically transfer to the intending couple immediately following birth. The decision explicitly prohibits the couple from abandoning the child and bars the surrogate mother from asserting future parental custody claims. The court also reiterated that commercial surrogacy remains prohibited throughout the process. Furthermore, the court specified that the judicial parentage order will function as the official birth affidavit and certificate once the child is born.
Magistrate Authority Under Surrogacy Act
The ruling sets aside an April 22, 2026 decision by a magisterial court, which had rejected the couple’s parentage request on the grounds that it sought civil relief outside criminal jurisdiction under the Bharatiya Nagarik Suraksha Sanhita, 2023. Justice Ahmed clarified that a magistrate’s authority to issue parentage and custody declarations originates directly from Section 4(iii)(a)(ii) of the Surrogacy (Regulation) Act, 2021, and operates independently of any criminal proceedings or alleged offenses.
The High Court emphasized that magistrates are legally obligated to verify whether statutory criteria have been fulfilled before issuing custody and parentage orders. However, the court noted that magistrates do not possess the authority to expand the scope of inquiry or review decisions previously validated by district medical boards or designated appropriate authorities.
Statutory Roles And Framework
In its judgment, the High Court outlined the distinct responsibilities established under the Surrogacy Act’s three-tier framework. The District Medical Board is tasked with evaluating medical indications, the appropriate authority verifies eligibility and essential requirements, and the magistrate holds statutory responsibility for issuing parentage and custody directives.
Background Of The Case
The case involves a couple married on August 21, 2006, who opted for surrogacy after years of struggling to conceive. Both the couple and their chosen surrogate mother received official eligibility certificates on March 7, with the couple’s certificate valid through February 28, 2027, and the surrogate’s certificate valid through March 6, 2027. On April 10, the couple also secured 36 months of mandatory health insurance coverage for the surrogate.
Having satisfied all statutory preconditions, the couple and the surrogate mother jointly submitted an e-filed petition on April 21 seeking formal recognition of parentage and custody. The magisterial court presented the matter on April 22 and dismissed it the same day as non-maintainable, prompting the successful challenge before the Madras High Court.
