Madras High Court (Madurai Bench): In a writ petition filed praying for directing the District Medical Board to issue eligibility certificate for the petitioners being the intending couples to undergo the surrogacy procedure with the Health Office and Fertility Research Centre constituted under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021, G.R. Swaminathan, J. directed the authorities to consider and dispose of the petitioners application on merits and in accordance with law within a period of four weeks from the date of receipt of copy of this order. Further, directed the State to constitute such a District Medical Board (‘Board’) immediately if not already constituted, and gave certain directions.
The Court said that due to the mushrooming of assisted reproductive technology centres and prevalence of unethical practices by a section of professionals led the Parliament to enact the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. These Acts mandate a series of procedures to be followed before the couple desiring a surrogate mother to give birth to their child may be allowed to do so. The couple have to fulfil the age and other criteria that have been laid down to have a child via surrogacy.
The Court said that as per the Acts, the Central Government and the State Governments should have formed the National Surrogacy Board and State Surrogacy Boards respectively, within 90 days of passing the Acts, to regulate these procedures. There is no clarity as to whether such a Board is functional in Tamil Nadu.
Further, the Court took note of the Explanation to Section 4(iii)(a)(i) of the Surrogacy Act, 2021 which states that the expression “district medical board” means a medical board under the chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the District and comprising of at least two other specialists, namely, the Chief Gynecologist or obstetrician and Chief pediatrician of the District, and said that such District Boards do not appear to have been constituted.
The Court also said that the Act specifies that the intending couple should be within the age limit of 23-50 years (female) and 26-55 (male) on the day of certification. This means that couples who have already been struggling to have a child for many years and who have to painfully accept that their only way to have a child may be via surrogacy now also have the added burden of getting these procedures done before they run out of time to have a baby. So, the procedure to enable them to undergo surrogacy must be fast tracked. Otherwise, the right given by the statute will be frustrated by bureaucratic delay and the intending couple may never be able to have their own biological child.
The Court noted that the petitioner was born on 27-10-1973, thus she will lose her right to have a child through surrogacy if eligibility certificate is not issued on or before 26-10-2023. Therefore, the Court said that application dated 24-02-2023 shall be considered and disposed of on merits and in accordance with law within a period of four weeks from the date of receipt of copy of this order by the authorities concerned under the aforesaid Acts.
Further, the Court noted that there is no clarity as to whether the District Medical Board for Tirunelveli has been constituted, thus it directed the State to constitute a District Medical Board (‘Board’) immediately, if not already constituted, and gave the following directions:
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The members of the Board need not necessarily be from Medical Colleges as the Act does not contain such a stipulation. Information about the District Medical Boards should be made available at every Medical College Hospital office.
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The Government is obliged to ensure that the appropriate authorities and the members of the District Medical Board are well versed in the norms and procedures laid down in the aforesaid Acts.
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They should be sensitised, so that applications are disposed of expeditiously.
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Since the Act requires that the intending couple and the surrogate to apply to the Magistrate Court for order concerning the parentage and custody of the child to be born through surrogacy, the State Judicial Academy should conduct programs so that the judicial officers are fully acquainted with the statutory provisions.
[Priya Dharshini v State of Tamil Nadu, 2023 SCC OnLine Mad 2005, decided on 31-03-2023]
Advocates who appeared in this case :
For Petitioner: Advocate P.M. Vishnuvarthanan;
For Respondents: Government Advocate S. Jeyapriya.
