Madras High Court steps in to safeguard twin foetuses of surrogate mother

The Madras High Court, on Tuesday (July 29, 2025), invoked its parens patriae jurisdiction in favour of 19-week-old twin foetuses of a surrogate mother and decided to rectify a significant procedural lapse committed by their intending parents as well as the treating hospital before commencing the surrogacy process.

Justice N. Anand Venkatesh took upon himself the responsibility of issuing the ‘parentage order’ required to be obtained by the intending couple/intending woman and the surrogate mother, from a court of the first class magistrate or above, as mandated under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act of 2021.

Stressing upon the usage of the words ‘or above’ in the legal provision, the judge agreed with advocate A. Shabnam Banu that the High Court too could issue the ‘parentage order’ in exceptional cases where the interests of the unborn babies, the surrogate mother as well as the intending parents had to be safeguarded.

He directed the intending parents and the surrogate mother, involved in the case before him, to appear before the Master court, which functions in the High Court buildings, on August 1 for the purpose of recording their statements with respect to compliance of other procedures such as obtaining insurance coverage.

He decided to pass further orders on the writ petitions filed by the intending couple as well as the treating hospital, after receipt of recorded statements from the Master court, on August 7. In the meantime, the hospital was directed to respond to a notice issued to it by the health department and submit a copy in the court.

The judge pointed out that though the Surrogacy (Regulation) Act came into force on January 25, 2022, the statutory rules under it were framed much later and so, most people were still unaware of the procedures prescribed under it and its requirements were yet to percolate into the system.

What is a parentage order?

Section 4(iii)(a)(II) of the Act categorically states that no surrogacy clinic should initiate the surrogacy process unless the intending couple/intending woman and the surrogate mother obtain a ‘parentage order’ which shall serve as the birth affidavit regarding the custody of the surrogate child/children after birth.

The judge said, before issuing the ‘parentage order,’ the courts generally satisfy themselves that the intending parents/intending woman do not have any child, either born naturally or through adoption/surrogacy, and that the woman was incapable of having a child naturally due to a medical condition.

The courts also ascertain whether the woman who had come forward to bear the foetus was willing to be a surrogate mother for the intending couple and that she had the consent of her husband too, if she was married. Further, she must undertake not to claim parental custody of the baby after he/she is born.

The surrogate mother should also agree that the birth certificate could be granted in favour of the intending parents and the latter must also make a statement before the court that they would not abandon the child/children, born through surrogacy, for any reason whatsoever.

Further, all parties concerned must assure the court that there was no commercial surrogacy involved and that sufficient insurance coverage too had been taken in favour of the surrogate mother for a period of 36 months to cover the postpartum delivery complications.

Therefore, the ‘parentage order’ was a very important document aimed at declaring the intending couple as the lawful parents of the child/children to be born and it was essential to obtain it before the surrogacy process could be commenced by the treating hospital.

The procedural lapse

In the present case, the surrogacy process had been initiated without complying with the legal requirement, by Chennai-based GG Hospital which was a pioneer in fertility research. Its counsel contended the hospital had committed a “bona fide mistake” without giving due attention to the provisions of the new law.

The hospital intimated the failure to obtain ‘parentage order’ to the intending couple only on May 30, 2025 and by that time, the embryo transfer had taken place and the twin foetuses inside the surrogate mother’s womb were already 11-weeks old, the court was told.

To ensure the efforts taken by the court in the present case to safeguard the bodily autonomy of the surrogate mother and the interests of the unborn babies must not be misused by others in future, Justice Venkatesh made it clear his order could not be cited as a precedent.