Karnataka High Court Directs Surrogacy Board To Consider Application Of Man Who Crossed 55 Yrs Age Bar, Evolves Triple Test Citing 'Unique Situation'

The Karnataka High Court has evolved a triple test theory to permit a couple to undertake the procedure of surrogacy, which otherwise was not permitted to them as the husband being 57-year-old has crossed the age eligibility criteria, under the Surrogacy (Regulation) Act, 2021. A Single judge bench of Justice M Nagaprasanna allowed in part the petition filed by H Siddaraju and his wife and directed the State Surrogacy Board or prescribed authority to consider their application for grant of an eligibility certificate as is necessary in law for the petitioners to become parents by way of surrogacy, on the triple tests as indicated – genetic; physical and economical. The petitioners had approached the court questioning the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. Section 2(1)(zg) defines ‘surrogate mother’ to mean a woman who agrees to bear a child, which would be genetically related to intending couple through surrogacy from the implantation of the embryo in her womb and fulfills all other condition. Section 4(c)(I) which mandates that an intending couple should be married and the woman should not have crossed 50 years of age and the man should not have crossed 55 years of age. The mother in the case at hand comes within the provisions of law as she is yet to cross 50 years. The petitioners contended that they were a happy family of a couple with a child/ boy, who was about 23 years old when he met with a road accident and died. On the death of the only child, the health of the 2nd petitioner (wife) began to completely deteriorate due to acute depression. The couple then wanting another child by way of adoption, were told that it is going to take 3 or 4 years and on further consultation were told that surrogacy was the only method to bear the child. It is then that the sister in-law of the 1st petitioner who is 35 years old came forward to donate her egg and a family friend aged 25 years and having two children agreed to be a surrogate mother and the sperm of the 1st petitioner would be used to fertilize the donated egg. In the entire process, there is no financial consideration as they are all closely knit family or like a family, it was said. The petitioners contended that the age restriction has no rationale behind the Act and has to be obliterated. “It should be made age free, both the husband and wife who are an intending couple,” it was argued.Findings: Firstly the bench rejected the contention of the petitioners to obliterate the age criteria, it said “The emphatic submission of the petitioner is that, there is no rationale behind the prescription of the cut off age and there being no rationale, the provision is unconstitutional. I decline to accept the submission that there is no rationale behind the stipulation of the cut off age of 55 years for the husband to become an intending father by way of surrogacy.” However, it observed that the Court has to salvage the situation that is brought before the Court. “In the opinion of this Court it is necessary to iron out the creases in the legislation,” it said. The bench then opined “Ironing out the creases by the constitutional Courts of the provisions of law as promulgated without disturbing the content of the statute is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand.” Following which it said “I deem it appropriate to evolve a triple test theory to permit the petitioners to avail of procedure of surrogacy, in the peculiar facts of this case by directing conduct of 3 tests. The first petitioner has to cross the wall of the triple tests to become eligible to become a father by surrogacy.” The triple test laid down by the court was as follows: 1: Genetic Test: The court has suggested the 1 petitioner (Husband) to undergo the genetic test for determination of the health of the sperm, so that the child born out of the embryo of which the sperm of the petitioner is impregnable part, is not born with any disorder or infirm. 2: Physical Test: The (intending) couple must have the physical capacity to handle the child, though not physical capacity stricto senso to carry the child everywhere, but to manage the child. 3: Economic Test: The intending couple must be economically sound and should not lead the child to penury the moment it is born. The court suggested affidavits of the intending couple should be filed before the Board/appropriate authority with regard to their assets and liabilities which would become helpful to decide the economic capacity of the intending couple. “It may become necessary to protect the child by making future investments on the child by the intending couple. The procedure and the nuances of seeking such economic tests is best left open to the Board/appropriate authority to decide, but such economic test is imperative,” it said. The bench clarified that “The...

Karnataka High Court Directs Surrogacy Board To Consider Application Of Man Who Crossed 55 Yrs Age Bar, Evolves Triple Test Citing 'Unique Situation'

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