Madras High Court: Surrogacy Guidelines Uphold Spirit of the Act I Certificates Must Be Issued Locally to Prevent Misuse
Safiya Malik
The Division Bench of the High Court of Judicature at Madras, comprising Justice S.M. Subramaniam and Justice K. Rajasekar adjudicated on the challenge against a clarification issued by the Directorate of Medical and Rural Health Service regarding the district-specific issuance of eligibility certificates for surrogate mothers. Without annulling the clarification, the Court directed the Appropriate Authority to issue proper fresh instructions in light of the current legal framework.
The Court observed that although the challenged administrative instructions had no binding force of law, they did not contradict any statutory provisions. It stated that ensuring surrogate mothers obtain eligibility certificates from their district of residence was consistent with the effective enforcement of the Surrogacy (Regulation) Act, 2021.
The writ appeal was filed against the dismissal of their writ petition seeking to quash the proceedings dated March 4, 2024, issued by the third respondent. The appellants, intending couple under the Surrogacy Regulation Act, 2021, possessed a certificate of essentiality and secured a surrogate mother. However, the Appropriate Authority refused to issue the eligibility certificate for the surrogate mother, citing her non-residency in the district where the application was filed.
According to the appellants, the surrogate mother satisfied all conditions under the Act, and there existed no statutory requirement for issuance of eligibility certificates solely based on the surrogate mother's district of residence. The appellants contended that the clarification issued by the third respondent imposed additional, unauthorized restrictions beyond the scope of the Surrogacy Act, 2021, and Surrogacy (Regulation) Rules, 2022.
The appellants' counsel submitted that Form-17B, although referenced, had not been formally notified under the Surrogacy (Regulation) Rules, 2022. He asserted that neither the Act nor the Rules prescribed any requirement for issuance of eligibility certificates to be restricted by district.
On behalf of respondents 2 to 4, it was argued that the impugned proceedings merely clarified operational procedures for stakeholders and did not amount to new guidelines or statutory regulations. It was submitted that such clarifications were necessary to ensure better implementation of the provisions and protection of all parties involved in the surrogacy process.
The statutory framework governing the case included the Surrogacy (Regulation) Act, 2021, especially sections 2, 4, 6, 8, and 14. Section 4 detailed the regulatory framework for surrogacy and eligibility criteria for intending couples and surrogate mothers, while Section 14 provided the remedy for appeals against rejection of certificates.
The impugned clarification, particularly paragraphs 5, 6, 10, and 11, stipulated that the eligibility certificate for a surrogate mother must be issued by the District Medical Board from the district where she resided. It was noted that "the surrogate mother's family/eligible couple register data will be available only with the concerned district."
The appellants challenged these provisions, asserting the lack of statutory backing, while the respondents maintained that the clarification was within administrative competence and intended for smoother implementation.
The Court meticulously analysed the statutory scheme of the Surrogacy (Regulation) Act, 2021. It incorporated relevant definitions from Section 2, including "couple," "intending couple," "intending woman," and "surrogate mother."
The Court recorded that Section 4 mandates that no surrogacy procedures shall be conducted except after satisfying stipulated conditions, including obtaining certificates of essentiality and eligibility. It observed that "getting the certificates from the proper place and authority is mandated under the Act, more specifically Sections 4 and 6."
The Court noted that Form-17 and Form-17B, although mentioned in the draft rules, were not notified in the final Surrogacy (Regulation) Rules, 2022. It stated, "Until today, Form 17, 17(B) are not notified and not in force."
Examining the impugned clarification, the Court observed that the forms referred to were based on draft rules and lacked statutory force. Nonetheless, the Court found that the clarifications did not alter statutory rules or create new conditions but served an administrative function for implementation.
The Court stated, "Though prescribed Form is not having any legal sanctity, but the contents to be recorded in the certificates in substance not violates any right of parties, or same is ultra vires to the Act, rules or regulations."
Citing Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] and Union of India v. Amrik Singh [1994 (1) SCC 269], the Court reiterated that administrative authorities could issue executive instructions to fill gaps in statutory rules, provided such instructions were not inconsistent with the statute.
The Court further recorded, "The intention behind the Surrogacy Act as well as the Rules is for proper practice and regulations of the process of surrogacy."
Referring to the practical challenges of verifying a surrogate mother's qualifications and background, the Court observed that permitting issuance of eligibility certificates from unrelated districts could undermine the regulatory framework.
The Court observed, "If the Surrogate mother is allowed to get certificate at any place, where she is not residing, it will lead to inefficient implementation of the Act."
The Division Bench dismissed the writ appeal while issuing a specific direction to the third respondent. The Court directed:
"The Director/Appropriate Authority, the Directorate of Medical and Rural Health Service/Respondent No.3 herein is directed to issue fresh and proper instructions in this regard, in the background that the Draft rules were not notified."
The writ appeal was dismissed, and the connected civil miscellaneous petition was closed. There was no order as to costs.
Advocates Representing the Parties
For Appellants: Mr. K.V. Sajeev Kumar
For Respondents: M/s. M. Sneha
Case Title: XXXXX and Another v. Union of India and Others
Case Number: W.A. No.3767 of 2024
Bench: Justice S.M. Subramaniam and Justice K. Rajasekar
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