The High Court of Karnataka has evolved “triple tests” for considering the plea of a couple to have a child through altruistic surrogacy. It has suggested them to “iron out the creases” in the Surrogacy (Regulation) Act, 2021, which prohibits men aged above 55 to have a child through surrogacy.
Also, the court said that the provision in the Act, which states that “surrogate mother should be genetically related” to the couple who wants to have a child through surrogacy “defeats both altruism and logic”.
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“Altruistic surrogacy should mean, surrogacy by an outsider. Therefore, the provision [genetically related] runs counter to the philosophy or principle behind the enactment,” the court said. Justice M. Nagaprasanna made these observations while partly allowing a petition filed by a 57-year-old employee in a government college in Bengaluru, and his 45-year-old wife.
The petitioners, who lost their only child, a 23-year-old son, in a road accident in 2022, sought to have a child through altruistic surrogacy.
Age criteria
It has been said in the petition that the wife’s sister has come forward to donate her eggs for this purpose as the wife had undergone hysterectomy and cannot ovulate or donate eggs/gamete for surrogacy. But the petitioner-husband is facing legal hurdles as he cannot have a child through surrogacy as he has crossed 55 years and hence his sperms cannot be used to fertilise the donated eggs through In Vitro Fertilization (IVF) process.
Though a 25-year-old woman, a family friend of the petitioners and a mother of two children, came forward to be a surrogate mother, this again has posed a legal obstacle as she is not ‘genetically related’ to them, as the law mandates that surrogate mother has to be ‘genetically related’ to those intending to have a child through surrogacy.
‘Triple tests a must’
Observing that the lawmakers would have foreseen such a scenario while framing the Act, Justice Nagaprasanna said that it was the duty of the constitutional court to “iron out creases in the legislation without disturbing its content”.
As the various legal issues on Surrogacy (Regulation) Act are before the Supreme Court, the High Court has evolved the triple tests --- genetic test, physical test, and economic test --- which the petitioner-husband has to pass to become eligible to become a father by surrogacy.
Noticing that men experience a decrease in sperm health with age, the court said that the petitioner-husband would have to undergo genetic test so that the child is not born with any disorder.
The couple have to undergo a physical test to ascertain their physical capacity to manage the child as the life of the surrogate child should become miserable if they are infirm to handle the child; and economy test by filling statements on their assets and liabilities before the authorities concerned to ensure that they can protect the future of the child.
The High Court said that the authority concerned set up under the Act should consider the plea of the couple within eight weeks based on the triple tests and ascertaining the details of the intending surrogate mother.
However, the High Court did not deal with the on legality of the provisions of the Act as they pending before the apex court for adjudication.
