BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.12.2025 CORAM:

THE HON'BLE MRS. JUSTICE S.SRIMATHY and WMP.Crl(MD).Nos.591 & 592 of 2025

1. P.Subbiah

2. Lalitha

3. Priya Settu ...Petitioners Vs.

1. The Joint Director of Health Service, Authority under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act,. 2021, Tenkasi, Tenkasi District.

2. The District Medical Board, Constituted under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act,. 2021, Tenkasi, Tenkasi District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records of Impugned order passed unmumbered CMP.No. of dated 29.05.2025 and quash the same as illegal and consequently direct the learned Judicial Magistrate, Sankarankovil, to number the petition and pass appropriate orders on merits.

For Petitioners : Mr.R.J.Karthick For Respondents : Mr.P.Thambidurai Government Advocate (Crl.side)

ORDER

This writ petition is filed for Writ of Certiorarified Mandamus, to call for the records of Impugned order passed unmumbered CMP.No. of dated 29.05.2025 passed by the learned Judicial Magistrate, Sankarankovil and quash the same and consequently direct the learned Judicial Magistrate, Sankarankovil, to number the petition and pass appropriate orders on merits.

2. The contentions of the petitioners is that the impugned order was passed at the threshold, without allowing him to prove his case. Hence, the petitioner has filed this present petition.

3. The learned Government Advocate appearing for the respondents have raised formal objection to allow this petition.

4. In the impugned order passed by the learned Judicial Magistrate, sankarankovil, has stated as under ''Intending couple do not have eligibility to file this applicationas per Section 4(iii)(c )(I) of Surrogacy Act.

Hence returned.''

5. Admittedly, the first and second petitioners, being a married couple, are aged about 62 and 60 years respectively. The maximum age limit prescribed under the Surrogacy (Regulation) Act, 2021 is 50 years for a female and 55 years for a male. Thus, the petitioners have crossed the prescribed maximum age limit. However, the contention of the petitioners is that the process of Surrogacy was initiated prior to the enactment of the Surrogacy (Regulation) Act, 2021. The Act came into force on 25.01.2022, whereas the petitioners had commenced the Surrogacy process as early as the year 2019. This issue was considered by the Hon’ble Supreme Court in Vijay Kumari S. & Another v. Union of India, Urvasi & Another v. Union of India & others and Arun Muthuvel v. Union of India &

Others. All three matters were clubbed together, and a common order was passed on 09.10.2025, wherein it has been stated:-

''15.9 We therefore hold that creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples i.e., intending couples, in the instant cases. The earlier stages, namely, (i) Visit to surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining of the various permissions / certificates from Appropriate Authorities under Section 4 of the Act, (iv) Extraction of gametes of Stage A, are no doubt part of surrogacy procedure but are stages prior to the crystallization of the intention of the couple to undertake a surrogacy procedure an interpretation we are giving in the context of age barriers. Therefore, when there was no age restriction at the stage of creation of embryos and freezing them i.e., prior to the enforcement of the Act, when the intending couples are at the threshold of Stage B, the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter b