Sl. No.01. 20.07.2026 Suman Ct. 237 CRR 2142 of 2026 Soumen Sen and Anr. Vs. The State of West Bengal Mr. Kallol Basu Mr. Atreya Chakraborty ..for the petitioners Mr. Dibyendra Narayan Ray, ld. G.P. Mr. Kallol Mondal, ld. P.P. Mr. Subir Ganguly Mr. Guddu Singh Mr. Sourav Halder ..for the State The petitioners challenge the order dated April 27, 2026, passed by the learned Chief Judicial Magistrate in Misc. Case No. 228 of 2026. By the impugned order, the learned Magistrate dismissed the application filed under Section 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021 (in short, the Surrogacy Act, 2021). The learned Magistrate held that, in view of the Notification dated December 16, 2024, issued by the Officer on Special Duty and Special Secretary (MERT) and Chairperson, State Appropriate Authority under the Assisted Reproductive Technology and Surrogacy Acts, 2021, the validity period of the Medical Indication Certificate dated May 9, 2024, had expired. The learned Magistrate was further of the view that the application had been filed after an inordinate delay and that the certificate regarding the medical and psychological fitness of the surrogate mother, issued in Form 14 by the competent medical practitioner, did not specify either the date of its issuance or its period of validity. The relevant portion of the notification reads as follows: “With reference to the resolution taken in the meeting of State Appropriate Authority, WB under ART & Surrogacy Act, 2021 held on 05.11.2024, the period of validity of the medical indication certificate issued by the District medical Board of different districts (including health districts) to the intending Couple/woman for the purpose of availing surrogacy shall be for a period of one year from the date of issuance of the said certificate by the District Medical Board Or when the age of the intending couple or intending woman is going to surpass /cross the age bar prescribed U/S 4(iii) (C) (I) under Surrogacy (Regulation) Act, 2021.” This Court is of the view that, in the facts and circumstances of the present case, the learned Magistrate ought not to have declined to pass an order concerning the parentage and custody of the child proposed to be born through surrogacy. The Surrogacy Act, 2021 contemplates that an intending couple is required to obtain various certificates from different statutory authorities at different stages of the surrogacy process. Chapter III of the Act, captioned "Regulation of Surrogacy and Surrogacy Procedures," prescribes a sequential statutory framework. At the first stage, the intending couple is required to obtain a Certificate of Medical Indication (also referred to as a Certificate of Recommendation) from the appropriate Medical Board under Section 4. Thereafter, the intending couple is required to 2 obtain a Certificate of Essentiality from the Appropriate Authority under the Act. For the issuance of a Certificate of Essentiality, the following statutory prerequisites are required to be fulfilled: (a) a Certificate of Medical Indication; (b) an order of the jurisdictional Magistrate concerning the parentage and custody of the child proposed to be born through surrogacy; and (c) proof of insurance coverage in accordance with the provisions of the Act. Upon satisfaction of the aforesaid statutory requirements, the Appropriate Authority is required to consider the issuance of the Certificate of Essentiality. In addition, the intending couple is required to obtain an Eligibility Certificate upon fulfilment of the statutory conditions prescribed under the Act. One of the essential conditions is that, on the date of issuance of such certificate, the intending couple must satisfy the prescribed age criteria, namely, that the wife must be between 23 and 50 years of age and the husband between 26 and 55 years of age. The date of birth of petitioner no. 1 (the husband) is August 26, 1969. It is the admitted position of the parties that, although petitioner no. 2 (the wife) continues to be within the prescribed age limit, petitioner no. 1 had crossed the upper age limit of 55 years prescribed under Section 4(iii) (c)(I) of the Act by the time the application was filed before the learned Magistrate. It is equally undisputed that the validity 3 period of the Medical Indication Certificate dated May 9, 2024, had expired in terms of the Notification dated December 16, 2024, issued by the Officer on Special Duty and Special Secretary (MERT) and Chairperson, State Appropriate Authority. The only question that falls for consideration is whether the learned Magistrate was justified in refusing to grant the order contemplated under Section 4(iii)(a)(II) of the Act. In my considered opinion, while exercising jurisdiction under the aforesaid provision, the learned Magistrate is not empowered to examine the validity of the Certificate of Medical Indication, the certificate regarding the medical and psychological fitness of the surrogate mother, or any other certificate issued by the competent statutory authorities under the Act, except where there exists a genuine doubt as to the authenticity or genuineness of such documents. In my considered opinion, the question whether the intending couple satisfies the prescribed age criteria falls exclusively within the domain of the Appropriate Authority while considering the issuance of the Eligibility Certificate under Section 4(iii)(c) of the Act. It is for the Appropriate Authority alone to determine whether the intending couple satisfies the age requirements prescribed under Section 4(iii) (c)(I) of the Surrogacy Act, 2021. Once Parliament, in its wisdom, has entrusted the determination of the eligibility criteria, including the age of the 4 intending couple, to a designated statutory authority, the learned Magistrate could not have assumed such jurisdiction. Consequently, there was no occasion for the learned Magistrate to reject the petitioners' application on the grounds that the husband had crossed the prescribed upper age limit, that the Medical Indication Certificate had expired, or that the certificate regarding the medical and psychological fitness of the surrogate mother did not mention the date of its issuance or its period of validity. The scope of the Magistrate's jurisdiction under Section 4(iii)(a)(II) has recently been explained by the Madras High Court in CRL R.C. No. 950 of 2026, decided on June 25, 2026. The relevant observations are reproduced below: “61. After considering the various decisions of the Honourable Supreme Court and the High Court, this Court suggests the following Guidelines for Magistrates while dealing with the applications under Sec. 4(iii)(a)(II) of the Surrogacy (Regulation) Act, 2021:- "In order to ensure uniformity in judicial practice and avoid unnecessary hardship to intending couples, surrogate mothers and children born through surrogacy, the following guidelines may be used. The suggested judicial principle based on the observations of the role of the Magistrate is provided and the same may be considered, so as to ensure the division of duties between multiple agencies involved in the process of surrogacy. The role of the Magistrate under Section 4(iii)(a)(II) is confined to ensuring voluntariness, statutory compliance, welfare of the child and legal certainty regarding parentage and custody. The Magistrate is not expected to sit in appeal over findings recorded by the District Medical Board or the Appropriate Authority except where fraud, lack of jurisdiction or patent 5 illegality is apparent on the face of the record. …..” I find no reason to take a view different from that expressed by the Madras High Court. Although the Surrogacy Act, 2021 does not expressly enumerate the factors to be considered by the Magistrate while exercising jurisdiction under Section 4(iii)(a)(II), the following broad parameters may appropriately guide the exercise of such jurisdiction. The learned Magistrate may interact with or examine the surrogate mother, as the case may be, for the limited purpose of satisfying himself that: (i) she has voluntarily agreed to act as a surrogate mother; (ii) her consent is free from coercion, undue influence or misrepresentation; (iii) she fully understands the legal consequences of the surrogacy arrangement; and (iv) she unequivocally undertakes that she shall not claim parentage or custody of the child to be born through surrogacy at any stage in future and has no objection to the birth certificate being issued in the names of the intending parents in accordance with law. The learned Magistrate may also interact with or examine the intending parents to satisfy himself that: (i) they undertake to accept custody of the child immediately upon birth; 6 (ii) they undertake not to abandon the child for any reason whatsoever; (iii) they accept all legal rights, duties and obligations towards the child from the moment of birth; (iv) they possess the financial and other necessary means to provide for the child's care, maintenance, protection, welfare and education; and (v) they understand and accept the legal consequences arising from the surrogacy arrangement. Upon being satisfied as to the aforesaid aspects, the learned Magistrate may pass an order declaring that the intending couple shall be the lawful parents of the child proposed to be born through surrogacy and that custody of the child shall vest in the intending parents immediately upon birth, subject to the provisions of the Surrogacy Act, 2021. This Court must also take note of the fact that, on an earlier occasion, the petitioners had approached this Court after encountering difficulties in pursuing the surrogacy procedure on the ground that they were allegedly disqualified on account of age. A Coordinate Bench of this Court, by an order dated February 20, 2025, passed in WPA 24838 of 2024, was pleased to observe as follows: “1. Learned counsel representing the State respondents submits that no report has been forwarded by the Principal Secretary with regard to the issue regarding Surrogacy (Regulation) Act, 2021. 2. In view of the above, the principle laid down by the Court in the matter of Shyamoli Saha & Anr. Vs. The State of 7 West Bengal & Ors. shall be applicable in the instant case. 3. The petitioners shall be permitted by the clinic to avail the benefit under the Surrogacy (Regulation) Act, 2021 in the same manner as applied in the Assisted Reproductive Technology (Regulation) Act, 2021. 4. The writ petition stands disposed of. 5. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.” The aforesaid order has attained finality, no appeal having been preferred therefrom by any of the parties. This circumstance further reinforces the conclusion that the learned Magistrate was not justified in rejecting the petitioners' application in disregard of the binding order passed by this Court. Accordingly, the impugned order dated April 27, 2026, passed by the learned Chief Judicial Magistrate is set aside. The learned Magistrate is directed to reconsider the petitioners' application afresh in the light of the observations made herein and to dispose of the same within seven days from the date of communication of this order. Upon obtaining an appropriate order from the learned Magistrate, the petitioners shall be at liberty to approach the Appropriate Authority, along with all other relevant documents, for the issuance of a Certificate of Essentiality under Section 4(iii)(a) of the Surrogacy Act, 2021, and an Eligibility Certificate under Section 4(iii)(c) thereof. While considering the petitioners' application for the issuance of the aforesaid certificates, the Appropriate 8 Authority shall, having due regard to the order dated February 20, 2025, passed in WPA 24838 of 2024, as well as the period spent by the petitioners in pursuing the litigations, not reject the petitioners' application on the ground that petitioner no. 1 has crossed the prescribed upper age limit or that the validity period of the Medical Indication Certificate dated May 9, 2024, has expired. With the above observations, CRR 2142 of 2026 is disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocates for the parties on usual undertakings. (Kausik Chanda, J.) 9