Delhi High Court Allows NRI Couple to Virtually Appear Before Surrogacy Board, Quashes Rejection Order

New Delhi: In a significant ruling championing a pragmatic approach to the Surrogacy (Regulation) Act, 2021, the Delhi High Court has set aside a 'Rejection Certificate' issued to a Canada-based couple, permitting them to appear virtually before the District Medical Board. The court, presided over by Justice Sachin Datta , held that the Board's insistence on physical presence was unwarranted, especially when its primary role is to examine medical records.

The court quashed the rejection order dated March 7, 2025, and directed the District Medical Board to reconsider the couple's application for a 'Certificate of Medical Indication for Gestational Surrogacy' after conducting virtual interactions.

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Background of the Case

The petitioners, Apekshita Kala and her husband, a married couple residing and working in Kamloops, British Columbia, Canada since 2022, sought to pursue gestational surrogacy in India. They filed an application on August 20, 2024, before the District Medical Board, South District, Delhi, for the necessary medical certificate as mandated by the Surrogacy (Regulation) Act, 2021.

Citing logistical challenges, high travel costs, and difficulty in securing urgent leave from their jobs, the couple requested to attend the Board's proceedings virtually. However, the Board repeatedly issued notices demanding their physical presence on November 4, 2024, and December 17, 2024. Despite their authorized representative appearing in person and reiterating the request for a virtual hearing, the Board orally refused without providing a reasoned order.

Ultimately, on March 7, 2025, the Board rejected their application, stating that the couple "did not appear" and were "absent," thereby rejecting the application "due to absentia." This prompted the couple to file a writ petition in the Delhi High Court.

Arguments in Court

• Petitioners' Counsel: Argued that the rejection was arbitrary and violated principles of natural justice. They relied on Section 5(3) of the Surrogacy Regulations, 2023, which explicitly permits virtual meetings for the State Board, contending that a similar rationale should apply to the District Board. Crucially, they presented evidence showing that other District Medical Boards in Delhi (South-East and East districts) were already permitting applicants to appear virtually.

• Respondents' Counsel: Opposed the petition on two main grounds. First, they argued that the provision for virtual appearance (Section 5(3)) was applicable only to the State Board, not the District Medical Board. Second, they emphasized that physical interaction was necessary to prevent any possibility of exploitation in the surrogacy process.

Court's Pragmatic Interpretation and Reasoning

Justice Sachin Datta was not persuaded by the respondents' contentions, terming them impractical. The court observed that the District Medical Board's mandate at this stage is limited and primarily involves scrutinizing medical records.

In a key excerpt, the judgment stated: > "In the opinion of this Court, there is no reason why the District Medical Board should not take a pragmatic view of the matter and permit the petitioners to appear virtually especially since the remit of the District Medical Board under Section 4(iii)(a) of the Surrogacy (Regulation) Act, 2021, is primarily to examine the relevant medical record..."

The court clarified that any apprehensions regarding exploitation could be addressed at a later stage of the process under Section 4(iii)(c) of the Act. For the initial step of issuing a medical certificate, a virtual interaction would suffice for any necessary clarifications.

The court also noted the inconsistency in practice across different districts in Delhi, stating: > "Importantly, it is noticed that this is the prevalent practice in other districts in Delhi... There is also no rationale as to why the District Medical Board should not equip itself in conducting virtual hearings as is mandated for the State Board..."

Final Decision and Implications

The High Court allowed the petition, setting aside the impugned rejection order. It directed the District Medical Board to:

1. Permit the petitioners to appear and participate in the proceedings virtually.

2. Allow their authorized representative to be physically present with all medical records.

3. Re-examine the application after a virtual interaction with the couple.

4. Complete this exercise expeditiously, preferably during its next sitting.

This judgment provides crucial relief for non-resident Indians (NRIs) and others facing logistical barriers in seeking surrogacy approvals. It sets a precedent for medical boards to adopt modern, practical procedures like virtual hearings, ensuring that statutory processes do not become insurmountable hurdles for genuine applicants.