Madras High Court
Subbulakshmi vs The Union Of India on 25 April, 2025
Author: S.M.Subramaniam
Bench: S.M. Subramaniam
W.A. No.3767 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03-02-2025
PRONOUNCED ON : 25-04-2025
CORAM
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM
And
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
W.A. No.3767 of 2024
and
C.M.P.Nos.29654 and 29655 of 2024
1. Subbulakshmi
2. S. Seenivasan ... Appellants / Petitioners
-vs-
1. The Union of India,
Rep. By Secretary, Ministry of Health
& Family Welfare, Sasthri Bhavan,
New Delhi - 110001.
2. State of Tamil Nadu,
Rep. by its,
Principal Secretary to Government,
Health and Family Welfare Department,
Secretariat, Chennai.
3. The Director/ Appropriate Authority,
The Directorate of Medical and Rural Health Service,
No.359, DMS Complex, 361, Anna Salai,
Chennai - 600006.
Page 1 of 24
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W.A. No.3767 of 2024
4. The Joint Director of Health Service/
District Medical Board,
Office: 166, North Beach Road,
Fisheries Campus, Thoothukudi - 628 001.
... Respondents/ Respondents
Prayer: Writ Appeal as against the order dated 21.08.2024 passed in W.P.
No. 23771 of 2024.
For Appellants : Mr. K.V. Sajeev Kumar
For RR 2 to 4 : M/s. M. Sneha
*******
ORDER
[Order made by K. RAJASEKAR, J.]
This Writ Appeal has been filed challenging the order dated 21.08.2024
passed in W.P. No. 23771 of 2024, wherein the learned Single Judge of this
Court has dismissed the Writ Petition filed by the appellants herein, rejecting the
relief of quashing the proceedings of Respondent No.3 dated 04.03.2024 on the
ground that the letter impugned is not ultra vires to the Surrogacy Regulation Act,
2021 and Surrogacy (Regulation) Rules, 2022.
2. The brief facts leading to the filing of this appeal are brief as
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follows:
3. The petitioners herein are intending couple possessing certificate of
essentiality for the purpose of surrogacy, issued as per the Surrogacy Regulation
Act, 2021 (Surrogacy Act, hereinafter). They have able to secure a Surrogate
mother for the purpose of surrogacy and approached the concerned authorities for
issuance of eligibility certificate for the Surrogate mother to undergo Surrogacy
procedure. According to the petitioners, the Surrogate mother fulfills the
conditions and there is no legal impediment for issuing the eligibility certificate
to her. They approached the appropriate Authority and issuance of the certificate
was refused on the ground that the Surrogate mother was not hailing from the
district in which they have made application for issuance of the eligibility
certificate. The reasons stated by the Authorized Officer is that the guidelines
issued by the State Authority, prescribes a condition that the eligibility certificate
for a Surrogate mother shall be issued only from the district, where the Surrogate
mother is hailing/ residing. This guideline issued by the State Authority/ third
respondent herein is against the rules prescribed under the Surrogacy Act and it
had caused prejudice to the intending couple and their right to have a child.
Thereby, the petitioners have come forward with a writ of certiorari, seeking
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declaration to declare that the guidelines issued by the State Authority is
ultravirus to the rules of the Surrogacy Act and to quash the guidelines of the
State Authority dated 04.03.2024.
4. On the side of the respondents, it was reported that the eligibility
certificate has to be issued by the District Medical Board and for the purpose of
guiding the Officials and for the purpose of protecting the interest of the persons,
who are involved in the surrogacy procedures, including the intending couple and
Surrogate mother, impugned letter in the form of clarification issued. There is no
violation of any rules or rights of the petitioners.
5. The learned Single Judge, after hearing the parties has accepted the
case of the respondents and held that the guidelines/ impugned letter issued are
not violating the Surrogacy Act or Rules or the rights of the parties and dismissed
the writ petition.
6. Aggrieved over the same, this writ appeal is filed.
The Submissions on behalf of the Appellants:
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7. The learned counsel for the appellants/ petitioners submitted that the
Form-17 B have been prescribed as per the rules under the Surrogacy Act, which
reads that the Surrogate mother shall get the certificate from the appropriate
authority. It has not prescribed the condition that this certificate shall be issued
only by the appropriate authority from the district where the Surrogate mother is
hailing/ residing. He further submitted that there is no provisions regarding the
persons, who have to issue the eligibility certificate to the Surrogate mother,
prescribed under the rules of surrogacy, hence the guideline stating that the
Surrogate mother should get the eligibility certificate from the appropriate
authority of the district from where the Surrogate mother is hailing is not valid
and it has caused prejudice to the intending couple and Surrogate mother, thereby
prays this Court to quash the impugned proceedings.
The Submissions on behalf of the Respondents 2 to 4:
8. Per contra, the learned counsel appearing for the respondents
submitted that the prescribed guidelines are not new guidelines and not offending
from any of the rules or regulations. These guidelines are only explanation issued
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for the authorities or Stake holders for better understanding of the Surrogacy Act,
hence prays to dismiss the appeal.
Discussions and Conclusion:
9. We have considered the submissions made on both sides and also
perused the materials available on record.
10. For better understanding of the issues involved in this case, it is
appropriate to incorporate the relevant provisions of the Surrogacy Act.
"The definitions given under Section 2 are as follows:
Section 2(h) - "couple" means the legally married Indian man and
woman above the age of 21 years and 18 years respectively.
Section 2(r) - "intending couple" means a couple who have a
medical indications necessitating gestational surrogacy and who
intend to become parents through surrogacy.
Section 2(s) - "intending woman" means an Indian woman who is a
widow or divorcee between the age of 35 to 45 years and who
intends to avail the surrogacy.
Section 2(zd) - "surrogacy" means a practice whereby one woman
bears and gives birth to a child for an intending couple with the
intention of handing over such child to the intending couple after the
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birth.
Section 2(zg) - "Surrogate mother" means a woman who agrees to
bear a child (who is genetically related to the intending couple or
intending woman) through surrogacy from the implantation of
embryo in her womb and fulfils the conditions as provided in sub-
clause (b) of clause (iii) of Section 4."
11. Section 4 of the Surrogacy Act relates to Surrogacy and its
procedures and it reads as follows:
"4. Regulation of surrogacy and surrogacy procedures.— On and
from the date of commencement of this Act, —
(i) no place including a surrogacy clinic shall be used or cause to be
used by any person for conducting surrogacy or surrogacy
procedures, except for the purposes specified in clause (ii) and after
satisfying all the conditions specified in clause (iii);
(ii) no surrogacy or surrogacy procedures shall be conducted,
undertaken, performed or availed of, except for the following
purposes, namely:
(a) when an intending couple has a medical indication
necessitating gestational surrogacy:
Provided that a couple of Indian origin or an intending
woman who intends to avail surrogacy, shall obtain a
certificate of recommendation from the Board on an
application made by the said persons in such form and
manner as may be prescribed.
Explanation.—For the purposes of this sub-clause and item
(I) of sub-clause (a) of clause (iii) the expression
“gestational surrogacy” means a practice whereby a
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Surrogate mother carries 7 a child for the intending couple
through implantation of embryo in her womb and the child
is not genetically related to the Surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for
commercialisation of surrogacy or surrogacy procedures;
(d) when it is not for producing children for sale,
prostitution or any other form of exploitation; and
(e) any other condition or disease as may be specified by
regulations made by the Board;
(iii) no surrogacy or surrogacy procedures shall be conducted,
undertaken, performed or initiated, unless the Director or in-charge
of the surrogacy clinic and the person qualified to do so are satisfied,
for reasons to be recorded in writing, that the following conditions
have been fulfilled, namely:—
(a) the intending couple is in possession of a certificate of
essentiality issued by the appropriate authority, after
satisfying itself, for the reasons to be recorded in writing,
about the fulfilment of the following conditions, namely: —
(I) a certificate of a medical indication in favour of
either or both members of the intending couple or
intending woman necessitating gestational surrogacy
from a District Medical Board.
Explanation.—For the purposes of this item, 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 gynaecologist or obstetrician and chief
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paediatrician of the district;
(II) an order concerning the parentage and custody of
the child to be born through surrogacy, has been
passed by a court of the Magistrate of the first class
or above on an application made by the intending
couple or the intending woman and the Surrogate
mother, which shall be the birth affidavit after the
Surrogate child is born; and
(III) an insurance coverage of such amount and in
such manner as may be prescribed in favour of the
Surrogate mother for a period of thirty-six months
covering postpartum delivery complications from an
insurance company or an agent recognised by the
Insurance Regulatory and Development Authority
established under the Insurance Regulatory and
Development Authority Act, 1999 (41 of 1999);
(b) the Surrogate mother is in possession of an eligibility
certificate issued by the appropriate authority on fulfilment of
the following conditions, namely: —
(I) no woman, other than an ever married woman
having a child of her own and between the age of 25
to 35 years on the day of implantation, shall be a
Surrogate mother or help in surrogacy by donating
her egg or oocyte or otherwise;
(II) a willing woman shall act as a Surrogate mother
and be permitted to undergo surrogacy procedures as
per the provisions of this Act.
Provided that the intending couple or the intending
woman shall approach the appropriate authority with
a willing woman who agrees to act as a Surrogate
mother;
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(III) no woman shall act as a Surrogate mother by
providing her own gametes;
(IV) no woman shall act as a Surrogate mother more
than once in her lifetime: Provided that the number of
attempts for surrogacy procedures on the Surrogate
mother shall be such as may be prescribed; and
(V) a certificate of medical and psychological fitness
for surrogacy and surrogacy procedures from a
registered medical practitioner;
(c) an eligibility certificate for intending couple is issued
separately by the appropriate authority on fulfilment of the
following conditions, namely:--
(I) the intending couple are married and between the
age of 23 to 50 years in case of female and between 26
to 55 years in case of male on the day of certification;
(II) the intending couple have not had any surviving
child biologically or through adoption or through
surrogacy earlier: Provided that nothing contained in
this item shall affect the intending couple who have a
child and who is mentally or physically challenged or
suffers from life threatening disorder or fatal illness
with no permanent cure and approved by the
appropriate authority with due medical certificate
from a District Medical Board; and
(III) such other conditions as may be specified by the
regulations."
12. Section 4(ii)(a) provides that except for the purposes stated therein,
no surrogacy procedures shall be conducted and before availing surrogacy, the
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intending couple shall obtain a certificate for recommendation from the Board, on
an application made by such persons in such form or manner as may be
prescribed. Similarly, Section 4(iii)(a) lays down that the intending couple shall
possess "certificate for essentiality" issued by the appropriate authority for the
purpose of surrogacy after satisfying itself the conditions stipulated in Sections
4(iii)(a)(i), (ii) and (iii).
13. Section 4(iii)(b) prescribes that the Surrogate mother, shall be in
possession of an eligibility certificate issued by appropriate authority, after
satisfying conditions prescribed in 4(iii)(b) (I) to (V). The conditions prescribed
are relating to age of the women, willingness of women, etc. More importantly,
Section 4(iii)(b)(iv) prescribes no women shall act as a Surrogate mother more
than once in her lifetime to undergo surrogacy. Similarly, conditions for issuance
of eligibility certificate for intending couple prescribed under Section 4(iii)(c) (I)
to (III).
14. Section 6 of the Act titled as "Written informed consent of the
Surrogate mother" and it reads as follows:
"6. Written informed consent of Surrogate mother.—(1) No person
shall seek or conduct surrogacy procedures unless he has—
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(i) explained all known side effects and after effects of such
procedures to the Surrogate mother concerned; and
(ii) obtained in the prescribed form, the written informed consent of
the Surrogate mother to undergo such procedures in the language
she understands.
(2) Notwithstanding anything contained in sub-section (1), the
Surrogate mother shall have an option to withdraw her consent for
surrogacy before the implantation of human embryo in her womb."
15. Section 8 of the Act deals about the rights of Surrogate child and it
reads as follows:
"8. Rights of Surrogate child.— A 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
for time being in force."
16. Section 14 of the Act provides remedies to challenge the rejection of
applications, suspension or cancellation of registration passed by the appropriate
authority under Section 13 and communications relating to rejection of
certificates under Section 4 of the Act, which reads as follows:
"14. Appeal.— The surrogacy clinic or the intending couple or the
intending woman may, within a period of thirty days from the date of
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receipt of the communication relating to order of rejection of
application, suspension or cancellation of registration passed by the
appropriate authority under section 13 and communication relating
to rejection of the certificates under section 4, prefer an appeal
against such order to—
(a) the State Government, where the appeal is against the
order of the appropriate authority of a State;
(b) the Central Government, where the appeal is against the
order of the appropriate authority of a Union territory,
in such manner as may be prescribed."
17. In this case, the intending couple raised a grievance that the
Director/ Appropriate Authority/ third respondent herein has issued certain
guidelines relating to issuance of eligibility certificate for intending couple and
surrogate mother. According to the petitioners, these guidelines are not been
issued by invoking any of the powers to issue regulations or guidelines.
Similarly, the State has also taken the stand that they have not issued any
guidelines or made any rules. The letter impugned prescribes general procedures,
in the nature of clarifications for the purpose of better understanding of the rules
and regulations framed under the Act and also for creating awareness among the
Stake holders.
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18. We have gone through the guidelines and in paragraph No. 5 of the
proceedings, the Director has issued certain clarifications regarding the Form-17
i.e., the eligibility certificate for intending couple and stated that the certificate
for intending couple shall be issued by the Medical Board from where the
intending couple is hailing or residing. The paragraph No.6 states about the
necessary documents to be attached along with Form-17 i.e., Application as
follows:
(i) Aadhar Card Photo Copy of Intending Father
(ii) Aadhar Card Photo Copy of Intending Mother
(iii) Authorization letter from concerned Hospital
(iv) Proof of Marriage
(v) Medical History of Intending Mother
19. Paragraph Nos.7 to 9 reads about what kind of test to be conducted
and who are all should be consulted for the purpose of issuance of certificate.
paragraph Nos.10 & 11 deals with the Form-17 B eligibility certificate for the
Surrogate mother. In paragraph No.10, it is stated that the certificate of the
Surrogate mother shall be issued by the District Medical Board from where she is
hailing or residing. Similarly, paragraph No.11 states about the documents,
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which have to be received from the Surrogate mother and also listed the required
documents. It also reads that the eligibility certificate for the Surrogate mother
shall be issued from the Medical Board from where she is hailing, since the
surrogate mother's family/ eligible couple register data will be available only with
the concerned district. The necessary documents to be attached along with Form-
17 B to get eligibility certificate for Surrogate mother are as follows:
(i) Form-2 of the Surrogacy Act, 2021
(ii) Aadhar Card Photo Copy of Surrogate Mother
(iii) Fitness Certificate of Surrogate Mother from RMP/ Government
Doctor
(iv) Relationship Certificate of the Intending Couple and Surrogate
Mother issued by Notary Public
(v) Proof of Marriage and Child Birth Certificate of the Surrogate
Mother and Age proof
(vi) Surrogate Mother's Husband/ Guardian Concern Letter
(vii) Fitness Certificate of Surrogate Mother from Registered Medical
Practitioner
20. For better understanding, the copy of the Form-17 B furnished by
the writ petitioners in their typed set, is incorporated hereunder:
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21. The Form-17 B prescribes that the relationship between the
intending couple and the surrogate mother shall also be stated and this condition
also to be verified by the authorities concerned.
22. We have gone through the entire instructions impugned herein.
After some background check by this Court, we have noted that, Form-17, 17(B)
are prescribed in the Draft rules framed by the Ministry of Health and Family
Welfare (Department of Health Research), in exercise of power confined by
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Section 50 of Surrogacy Act. However, the ministry has notified only few rules
found in Draft rules, as per notification in G.S.R. 460(E), dated 21.06.2022 titled
as "The Surrogacy (Regulation) Rules 2022", which contains 14 rules, i.e., Rule 1
to 14, scheduled Part I and Part II, and Form I to Form V. Until today, Form 17,
17(b) are not notified and not in force. On reading of the impugned proceeding,
it shows that the State appropriate authority issued guidelines dated 04.03.2024,
wherein he refers that, already, District Medical Board is appointed under Section
4(iii)a(i) of the Surrogacy Act and they advised to follow the above guidelines,
more particularly, he suggests issuance of eligibility certificate of intending
couple, surrogate mother and essentiality certificate for intending couple, as per
Form 17, 17(b) and Form 11 respectively. He also suggests that the documents
required for issuance of such documents. These guidelines referring Forms
prescribed in Draft rules. Admittedly, the above forms have not been notified by
the concerned Ministries, hence direction to the Stake Holders to utilize these
forms, is not having any legal sanctity.
23. It is also brought to our knowledge that, in exercise of power under
Section 35(3)(9) and 35(3)(b), appropriate authorities are notified by the State
Government for the purpose of Surrogacy Act. As argued by the learned counsel
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for the petitioners, the Respondent No.3 is not empowered to issue any
guidelines, since he was not empowered to do so. However, it is contended that
the same were issued by way of clarification for the provisions already
incorporated under the Surrogacy Act and Rules.
24. In Sant Ram Sharma Vs. State of Rajasthan and Anr. [AIR 1967
SC 1910], the Apex Court in paragraph No.7 has held that the Government
cannot amend or superceed the Statuatory Rules by Administrative circulars but
if the Rules are silent in any particular point, the Government can fill up the gaps
and issue instructions, which are inconsistent with the Rules already framed. In
Union of India vs. Amrik Singh [1994 (1) SCC 269], the Apex Court has
reiterated that the Administrative Authority can issue executive instructions,
which are not inconsistent with the Statutory Rules. In Joint Action Committee
of Airlines Pilots Associations of India and Ors. vs. The Director General of
Civil Aviation and Ors. [2011 (5) SCC 435] in paragraph no.22, the Apex Court
has again considered the legal precedents relating to validity of administrative
instructions, and held as follows:
"It is evident from the above that executive instructions which
are issued for guidance and to implement the scheme of the Act and
do not have the force of law, can be issued by the competent authority
and altered, replaced and substituted at any time. The law merely
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prohibits the issuance of a direction, which is not in consonance with
the Act or the statutory rules applicable therein."
25. The Respondent No.3 herein is appropriate authority, to implement
the provisions of the Surrogacy Act and he has issued clarifications to the District
Level Authority, who have been notified to issue certificates, prescribed under
Section 4 of the Surrogacy Act, concerning with all stake holders under the act.
26. The intention behind the Surrogacy Act as well as the Rules is for
proper practice and regulations of the process of surrogacy. This Act and Rules
prescribe the stage by stage verifications and involvement of various authorities
including the Medical Board at each and every stage of the process. Getting the
certificates from the proper place and authority is mandated under the Act, more
specifically Sections 4 and 6 of the Surrogacy Act, which in turn help the parties
to rely on the informations given by the individuals regarding their consent,
eligibility, qualifications, etc. 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.
27. In the case in hand, the petitioners herein are hailing from
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Thoothukudi district and according to them, they were not able to get a Surrogate
mother from their district or from the State of Tamil Nadu. They have not even
disclosed any information about the Surrogate mother. According to the
petitioners, they were not able to give the name of the Surrogate mother in this
writ petition for the purpose of maintaining her privacy. Whereas in the Act,
various types of tests have to be conducted by the Medical Board/ District
Authorities and verification has to be done with regard to the family background
of both intending couple as well as surrogate mother. The Act also provides
guidance to the appropriate authorities for maintaining the records/ registers for
the purpose of uniformity and for flawless implementation of the Act and also for
protecting the interest of the intending couple and Surrogate mother, more
particularly, for strict adherence of proceedings.
28. Admittedly, Surrogacy Act impose various duties to the competent
authorities to verify qualifications and conditions of the intending couple and
surrogate mother, more particularly, the number of times, the Surrogate mother is
eligible to undergo surrogacy is prescribed. 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.
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29. We are of the view that the present executive instructions, which are
issued for guidance and to implement the scheme of the Act, though do not have
the force of law, it can be issued by the Competent Authority, without altering
any rules or contemplates any new conditions. If the contention of the writ
petitioners are accepted, then, it will lead to help the violators to bend the
provisions in their favour, more particularly, when there are specific conditions
imposed on the Surrogate mother. It is always better that the Surrogate mother
shall be directed to receive certificate from the district, where she is hailing or
residing. Hence, we find no reason to reject the guidelines issued. However, 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.
30. With the above observations, the present writ appeal stands
dismissed. Consequently, connected civil miscellaneous petition stands closed.
However, there shall be no order as to costs.
(S.M.SUBRAMANIAM, J.) (K.RAJASEKAR, J.)
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25-04-2025
Index : Yes/No
Internet: Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
stn
To
1. The Union of India,
Rep. By Secretary, Ministry of Health
& Family Welfare, Sasthri Bhavan,
New Delhi - 110001.
2. State of Tamil Nadu,
Rep. by its,
Principal Secretary to Government,
Health and Family Welfare Department,
Secretariat, Chennai.
3. The Director/ Appropriate Authority,
The Directorate of Medical and Rural Health Service,
No.359, DMS Complex, 361, Anna Salai,
Chennai - 600006.
4. The Joint Director of Health Service/
District Medical Board,
Office: 166, North Beach Road,
Fisheries Campus, Thoothukudi - 628 001.
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S.M.SUBRAMANIAM, J.
AND
K.RAJASEKAR, J.
stn
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Pre-delivery Judgment made in
25-04-2025
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