Final Order 1

Order Details: Order Below EX 1
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IN THE COURT OF ADDL. CHIEF JUDICIAL MAGISTRATE, 09TH
COURT, BANDRA, MUMBAI
C. C. No.:- 108/MISC./2026
ORDER BELOW EXH.-1
This is an application filed by the applicants Geitikka
Dawra and Saatiish Dawra for obtaining order of Parentage and
Custody of Child to be born through surrogacy u/sec. 4(iii) (a)(II) of
the Surrogacy (Regulation) Act 2021 and u/sec. 125 of The Code of
Criminal Procedure Code. The application is duly supported by the
affidavit of the applicants.
2. Section 4(iii) of the said Act deals with certain conditions
to be fulfilled by the intending mother as well as the surrogate
mother in order to conduct, undertake, perform and initiate
surrogacy procedure. Out of said conditions, one conditions is to get
an order concerning the parentage and custody of the child to be
born through surrogacy from the Court or above, which shall be the
birth affidavit after the surrogate child is born. Hence, this
application.
3. It is the case of the applicants that, they are legally
wedded husband and wife since their marriage is solemnized on
20/04/2018 as per Hindu Rites and Rituals. They have no issue
since more than 8 years of their marriage. Hence, they are intending
to become parents with the help of surrogacy procedure under the
Surrogacy (Regulation) Act, 2021. The applicant no.1 is taking
treatment for Assisted Reproductive Technology (IVF- Intra Vitro
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Fertility) for primary infertility at Jaslok Hospital and Research
Center, 15, Dr. D.G. Deshmukh Marg, Mumbai. After due
consultation and previous failed cycle, endometriosis, frozen pelvis
and gross obesity, the applicant no.1 has been advised surrogacy by
Dr. Firoza Parikh of Jaslok Hospital. Thereafter, applicants followed
up with Dr. Firoza Parikh and gave history of doing 2 cycles of egg
retrieval. The Consent of Surrogate mother and agreement for
surrogacy dated 30/01/2026 has been duly executed and entered by
and between surrogate mother and applicants wherein surrogate
mother has duly agreed and undertaken to relinquish all her rights
over the child which will be born in future, though the process of
surrogacy and shall hand over the child/children to be applicants.
The applicant submitted Eligibility Certificate (Form 17) dated
02/07/2025 for intending mother (Form 11) dated 05/02/2026
under section 4(iii) (a) and section 4(iii)(b) of the Surrogacy
(Regulation) Act 2021.
4. The applicants filed officer orders and notification of
Government showing that, certificates issued by concerned officials
have authority to issue same as a Appropriate Authority and Medical
Board.
5. It is further mentioned that, the applicant have been
informed about the insurance coverage of such amount as the case
may be prescribed for the period of thirty six months in favour of
Surrogate Mother by the intending mother form an insurance
company or an agent recognized by Insurance Regulatory
Development Authority. In support of the same, the applicants have
filed on record copy of Insurance Cover of Bandhan Life Insurance.
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6. Heard the Ld. Advocate for the applicants. Perused the
application along-with the documents so filed.
7. The applicant nos. 1 and 2 both are the Indian Citizens
and resident of Khar (W), Mumbai. They have filed verified copy of
Aadhar Card to that effect. The applicant nos. 1 and 2 are 48 years
and 53 years old respectively. The applicants have also filed their
certificate of registration of marriage. This shows that, the couple is
married, since their marriage is solemnized on 20/04/2018.
Therefore, they are “Couple” within the meaning of Section 2(h) of
the said Act. The applicants have also filed certain medical papers of
treatment in Jaslok Hospital. The applicants have also filed on record
the certificate issued by Dr. Firoza Parikh dated 17/07/2025 stating
that, the applicant no.1 Geitikka Dawra has undergone Laparoscopic
Cystectomy with adhesiolysis for frozen pelvis and she had embryos
frozen from her previous IVF cycles and in view of her history
endometriosis, endometrial polyp’s and multiple surgeries in the past,
she is advised surrogacy. The certificate issued by the doctor prima
facie shows that, the applicant no.1 is suffering from proven
infertility. Therefore, the couple have a medical indication
necessitating gestational surrogacy and they intend to become
parents through surrogacy. The applicants have also filed marriage
certificate on record. There is no reason to disbelieve the applicants.
8. However, as per the Surrogacy Regulation Act, 2021,
“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
who fulfills the conditions as provided in sub-clause (b) of clause (iii)
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of Section 4. As per the provision of said section, the surrogate
mother is in possession of an eligibility certificate issued by the
appropriate authority on fulfillment 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. Considering this legal
provision, it is clear that, age of the surrogate mother has to be
between 25 years upto 35 years. In the present case the birth date of
surrogate mother Sonali Ganesh Mashke is 01/01/1991. Hence, her
age on the date of filing present application i.e. on 18/03/2026 is 35
years 2 months and 18 days. Therefore, the surrogate mother is
disqualified as per the said provision to be the surrogate mother.
Hence, in my opinion, the application is liable to be rejected.
Therefore, I pass the following order :-
ORDER
The application filed under section 4(iii) (a)(II) of
the Surrogacy (Regulation) Act 2021 stands rejected.
Mumbai.
Date : 04/06/2026.
(Vikas U. Misal)
Addl. Chief Judicial Magistrate
09th Court, Bandra, Mumbai.
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