‘Handle with Sensitivity’: Madras HC Pulls Up Magistrate for Rejecting Altruistic Surrogacy Petition

The Madras High Court recently set aside a Judicial Magistrate’s refusal to entertain a petition filed by a Vellore couple seeking approval for an altruistic surrogacy arrangement, directing the Magistrate at Katpadi to immediately take the case on file and decide it within two weeks.

The High Court held that the Magistrate had “erroneously” declined jurisdiction despite the Surrogacy (Regulation) Act, 2021 clearly empowering Magistrates of the first class to issue parentage and custody orders in surrogacy matters.

The bench of Justice A.D. Jagadish Chandira passed the order in a petition filed by a couple who approached the High Court after their surrogacy approval petition was repeatedly returned by the Magistrate, culminating in its rejection on September 26, 2025.

The couple, married and unable to conceive due to the wife’s primary infertility, had consulted a fertility specialist and were advised to undergo surrogacy. The proposed surrogate mother is the wife’s younger sister, who is mother of two children, and consented to carry the pregnancy without any commercial arrangement. The surrogacy was to be performed at a Chennai-based fertility hospital, and all statutory documents, including the surrogate’s medical fitness certificate, were submitted.

Under Section 4(iii)(a)(II) of the Surrogacy Act, intending parents must obtain an order from a Magistrate of the first class or above concerning parentage and custody of the child to be born through surrogacy. Such an order forms the foundation for the later birth affidavit. However, instead of numbering the petition, the Judicial Magistrate at Katpadi returned it multiple times and ultimately refused to entertain it, citing an interim order of the Supreme Court in Arun Muthuvel v. Union of India, which dealt with age-relaxation requests for couples who had sought exemption under the Act.

The High Court noted that the Magistrate had “without properly looking into the provisions of the Act” applied an entirely irrelevant Supreme Court order. The interim order, Justice Chandira observed, only permitted certain couples to approach their jurisdictional High Courts for age-related relaxation and had no bearing on the statutory jurisdiction of a Magistrate under Section 4 of the Act. Even the final Supreme Court order in that case dealt solely with age restrictions for couples who had begun the surrogacy process prior to the 2021 enactment.

Emphasising the “beneficial” nature of the Surrogacy Act, the High Court said judicial officers must handle such petitions with “sensitivity, responsibility and compassion,” as these matters involve the deepest aspirations of childless couples seeking parenthood through a lawful and medically supervised process.

"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," court observed. 

The repeated returns by the Magistrate, the court said, had frustrated the petitioners and undermined the purpose of the legislation.

Holding that the Magistrate “clearly” had jurisdiction and had returned the petition on an erroneous understanding of the law, the High Court set aside the impugned order. It directed the Magistrate to number the petition, take it on record, conduct an inquiry, and pass a reasoned order strictly in accordance with the Act within two weeks of receiving the High Court’s order.

The High Court also instructed the registry to immediately return the original petition and returned papers to the petitioners’ counsel to facilitate timely compliance.

Case Title: S.Prasanna and Another vs. M.Jothika

Order Date: November 14, 2025

Bench: Justice A.D. Jagadish Chandira