The necessity of obtaining a parental order under the Surrogacy Act must be strictly adhered to, yet courts can intervene to safeguard interests of all parties in exceptional circumstances.

Headnote:(A) Surrogacy (Regulation) Act, 2021 - Section 4(iii)(a)(II) - Petitioners sought a parental order after procedural lapses in obtaining necessary approvals for surrogacy - The Court emphasized the mandatory requirement of the parental order and that the hospital's failure to comply with the Act's provisions led to complications with the surrogate mother and unborn children. (Paras 1, 9, 12, 16, 19)

(B) Jurisdiction of Courts - The High Court can exercise its powers under Article 226 of the Constitution to pass the parental order in fit cases, providing legal recognition to intending parents while ensuring the procedure under the Act is adhered to. (Paras 15, 19)

Facts of the case:
The petitioners were unable to conceive naturally due to medical conditions, hence opting for surrogacy, but the hospital proceeded without the necessary parental order, resulting in the surrogate becoming pregnant. This led to challenges under the Act.

Findings of Court:
The Court allowed the petitions recognizing the petitioners as lawful parents following the precarious situation of the surrogate and unborn children, while also instructing systemic improvements to comply with the Act.

Issues: The main question addressed was the legality and ordering of parental status under the Surrogacy Act amidst procedural lapses.

Ratio Decidendi: The court determined that despite the violations, given the interests of the surrogate mother and unborn children, the parental order was merited in this case, highlighting the jurisdictional authority of the Court to intervene in surrogacy matters.

Result: Writ petitions are allowed.

COMMON ORDER

The writ petitions came up for hearing on 29.07.2025 and this Court passed the following order, “W.P.No.26975 of 2025 has been filed by the commissioning/intending parents to direct the respondents 1 to 4 to condone the procedural lapses on the part of the petitioners in not obtaining a parental order mandated under section 4(iii)(a)(II) of the Surrogacy (Regulation) Act 2021 ( for brevity, hereinafter referred to as 'Act').

2. W.P.No.27020 of 20205 has been filed by the hospital along with the commissioning parents/intending parents seeking for a similar relief.

3. The case of the petitioners is that they got married on 15.11.2015. The 1 st petitioner was diagnosed with Endometrial Adenocarcinoma in the year 2016 and hence, she underwent multiple treatments. The 1 st petitioner was neither able to conceive naturally, nor IVF proved to be successful. Hence, the 2nd petitioner approached the treating hospital during the year 2021 to discuss the treatment options for her medical condition. The 1 st petitioner was referred to an Oncologist. She underwent total hysterectomy on 17.11.2021 which rendered the 1 st petitioner medically unit to conceive or carry children.

4. In the light of the above development, the 1st and 2nd petitioners decided to opt for gestational surrogacy.

5. The petitioners were informed by the treating hospital that as per the Act, the surrogate mother was required to be genetically related to the intending couple The petitioners found that the said condition was running contrary to Section 4 (ii)(a) of the Act and therefore, they approached the Apex Court seeking for clarification. Ultimately, the Union of India issued a clarification and the petitioners were directed to approach the District Medical Board and State Appropriate Authority for issuance of Essentiality Certificate and complete the related procedures as prescribed under the Act to avail surrogacy services.

6. Accordingly, the petitioners submitted an application to the District Medical Board and the State Appropriate Authority on 16.05.2023 to initiate the surrogacy procedure. Pursuant to the same, the petitioners were issued with Form 17 and Form 17-B on 01.08.2023. Upon completion of formalities, the treating hospital proceeded with the embryo transfer on 06.11.2023, however on 17.11.2023, it was confirmed that the embryo transfer was unsuccessful.

7. The petitioners, therefore, decided to pursue surrogacy once again by using the second petitioner's gametes and donor oocytes. In the meantime, the Act came into force and the Rules were also framed. The relevant provision effectively bar the use of the donor gametes and donor oocytes in gestational surrogacy. This notification was challenged before the Apex Court and the Apex Court was pleased to pass an order dated 06.02.2024 permitting the petitioners to proceed with the surrogacy using donor eggs. In the light of this permission granted by the Apex Court, the petitioners started the procedure to begin surrogacy.

8. The relevant certificates and forms that were submitted and the procedure that was adopted by the petitioners is tabulated in paragraph 9 of the affidavit filed in support of the writ petition and for an easy understanding, the same is extracted hereunder:

Document Type	issued By	Document No./Certificate No.	Date
Certificate of Essentiality (Section	Director, IOG & Govt. Hospital for Women &	NA	02.02.2024

Document Type	issued By	Document No./Certificate No.	Date
4(iii)(a)(I))	Children, Egmore
Application Form (Form 1)	Submitted to Appropriate Authority	NA	29.08.2024
Consent of Surrogate Mother & Agreement (Form 2)	Surrogate Mother & Appropriate Authority	NA	14.11.2024
Certificate of Eligibility for Intending Parent (Form 17)	Appropriate Authority	08/3171 A2/2024	14.11.2024
Medical Fitness Certificate of Surrogate Mother	GG Hospital	NA	09.12.2024
Altruistic Surrogacy Agreement	Executed between Petitioners and Surrogate Mother	NA	14.12.2024
Certificate of Eligibility for Surrogate Mother (Form 17B)	Appropriate

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