Madras High Court Surrogacy Couple Parents Childs Welfare

The Madras High Court has declared a couple the lawful parents of a child to be born through surrogacy, holding that the child will be treated as their biological child and enjoy all rights available to a natural child while setting aside an order that rejected their custody claim.

Justice Shamim Ahmed was hearing the couple’s challenge to an April 22, 2026 order of a magisterial court, which had rejected their petition seeking to be declare the child’s parents under the Surrogacy (Regulation) Act, 2021. The trial court had rejected the plea observing that the relief sought was civil in nature.

“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…The welfare of the child is the paramount consideration when determining custody,” the court said on August 5.

The couple got married on August 21, 2006, and turned to surrogacy after years of being unable to conceive. The eligibility was certified by the appropriate authority on March 7, with the certificate valid until February 28, 2027. The woman who agreed to be their surrogate mother was also certified eligible on the same day, with her certificate valid until March 6, 2027. The couple also secured 36-month health insurance coverage for her from April 10.

After completing the legal requirements, all three approached the magistrate seeking an order concerning the parentage and custody of the child to be born through surrogacy.

The petition was e-filed on April 21 and presented before the magistrate on April 22. It was dismissed the same day as not maintainable by the magistrate holding that a court exercising jurisdiction under the Bharatiya Nagarik Suraksha Sanhita, 2023, was concerned with criminal proceedings, while the relief sought was civil in nature. The magistrate also noted that no offence under the Surrogacy Act had been alleged and no complaint had been filed.

The high court rejected this reasoning and held that the magistrate’s power to pass a parentage and custody order comes directly from Section 4(iii)(a)(ii) of the Surrogacy Act. It does not depend on the existence of criminal proceedings. The court said the magistrate has a specific statutory role under the Act and held that he must examine whether its requirements have been met before passing an order concerning parentage and custody.

The high court also rejected the magistrate’s view that the petition could not be entertained because the relief was civil in nature. It said that the Surrogacy Act itself identifies the magistrate of the first class or above as the authority responsible for passing an order concerning parentage and custody.

The court said the magistrate was required to satisfy himself that the statutory requirements had been complied with and then pass the necessary order. However, it was not his role to enlarge the inquiry or sit in appeal over the satisfaction recorded by the appropriate authority or the district medical board.

The court also noted that the Surrogacy Act creates a structured process involving the district medical board, appropriate authority and the magistrate. The medical board deals with the medical indication, the appropriate authority examines eligibility and essentiality, while the magistrate has the statutory responsibility concerning parentage and custody.

The court said that a parentage order under the Act is treated as the birth affidavit after the child is born. It added that the statutory procedures had been followed and that the eligibility certificate issued by the medical board was valid.

Setting aside the April 22 magistrate’s order, the high court passed the parentage order stating that the intending couple will be declared as lawful parents of the child to be born through a surrogate mother and the order will be treated as the birth affidavit/certificate after the child is born.

The court further directed that custody of the child would vest with the intending couple immediately upon birth and the couple cannot abandon the child, while the surrogate mother cannot claim parental custody in future. It also made clear that there would be no commercial surrogacy involved in the case at any point.

Vineet Upadhyay is an Assistant Editor with The Indian Express (Digital), where he leads specialized coverage of the Indian judicial system. Expertise Specialized Legal Authority: Vineet has spent the better part of his career analyzing the intricacies of the law. His expertise lies in "demystifying" judgments from the Supreme Court of India, various High Courts, and District Courts. His reporting covers a vast spectrum of legal issues, including: Constitutional & Civil Rights: Reporting on landmark rulings regarding privacy, equality, and state accountability. Criminal Justice & Enforcement: Detailed coverage of high-profile cases involving the Enforcement Directorate (ED), NIA, and POCSO matters. Consumer Rights & Environmental Law: Authoritative pieces on medical negligence compensation, environmental protection (such as the "living person" status of rivers), and labor rights. Over a Decade of Professional Experience: Prior to joining The Indian Express, he served as a Principal Correspondent/Legal Reporter for The Times of India and held significant roles at The New Indian Express. His tenure has seen him report from critical legal hubs, including Delhi and Uttarakhand. ... Read More